83 FR 23922 - Affirmatively Furthering Fair Housing: Withdrawal of the Assessment Tool for Local Governments

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Federal Register Volume 83, Issue 100 (May 23, 2018)

Page Range		23922-23927
FR Document		2018-11146

HUD announces the withdrawal of the Local Government Assessment Tool developed by HUD for use by local governments that receive Community Development Block Grants, HOME Investment Partnerships Program, Emergency Solutions Grants, or Housing Opportunities for Persons With AIDS formula funding from HUD when conducting and submitting their own Assessment of Fair Housing (AFH) under the Affirmatively Furthering Fair Housing (AFFH) regulations. Through Federal Register notice published on January 13, 2017, HUD announced the Office of Management and Budget's renewed approval of the Assessment Tool under the Paperwork Reduction Act. Since that time, HUD has become aware of significant deficiencies in the Tool impeding completion of meaningful assessments by program participants. HUD therefore is withdrawing the Local Government Assessment Tool because it is inadequate to accomplish its purpose of guiding program participants to produce meaningful AFHs. Following this withdrawal of the Local Government Assessment Tool, HUD will review the Assessment Tool and its function under the AFFH regulations to make it less burdensome and more helpful in creating impactful fair housing goals. Accordingly, this withdrawal notice also solicits comments and suggestions geared to creating a less burdensome and more helpful AFH Tool for local governments.

Federal Register, Volume 83 Issue 100 (Wednesday, May 23, 2018)

[Federal Register Volume 83, Number 100 (Wednesday, May 23, 2018)]
[Notices]
[Pages 23922-23927]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-11146]

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-5173-N-17]

Affirmatively Furthering Fair Housing: Withdrawal of the
Assessment Tool for Local Governments

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

ACTION: Notice.

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SUMMARY: HUD announces the withdrawal of the Local Government
Assessment Tool developed by HUD for use by local governments that
receive Community Development Block Grants, HOME Investment
Partnerships Program, Emergency Solutions Grants, or Housing
Opportunities for Persons With AIDS formula funding from HUD when
conducting and submitting their own Assessment of Fair Housing (AFH)
under the Affirmatively Furthering Fair Housing (AFFH) regulations.
Through Federal Register notice published on January 13, 2017, HUD
announced the Office of Management and Budget's renewed approval of the
Assessment Tool under the Paperwork Reduction Act. Since that time, HUD
has become aware of significant deficiencies in the Tool impeding
completion of meaningful assessments by program participants. HUD
therefore is withdrawing the Local Government Assessment Tool because
it is inadequate to accomplish its purpose of guiding program
participants to produce meaningful AFHs. Following this withdrawal of
the Local Government Assessment Tool, HUD will review the Assessment
Tool and its function under the AFFH regulations to make it less
burdensome and more helpful in creating impactful fair housing goals.
Accordingly, this withdrawal notice also solicits comments and
suggestions geared to creating a less burdensome and more helpful AFH
Tool for local governments.

DATES:
Applicability Date: May 23, 2018.
Comment Due Date: Comments on improvement to the AFH Tool for Local
Governments are due on or before July 23, 2018.

ADDRESSES: Interested persons are invited to submit comments to the
Office of the General Counsel, Rules Docket Clerk, Department of
Housing and Urban Development, 451 Seventh Street SW, Room 10276,
Washington, DC 20410-0001. Communications should refer to the above
docket number and title and should contain the information specified in
the ``Request for Comments'' section. There are two methods for
submitting public comments.
1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW, Room 10276,
Washington, DC 20410-0500. Due to security measures at all federal
agencies, however, submission of comments by mail often results in
delayed delivery. To ensure timely receipt of comments, HUD recommends
that comments submitted by mail be submitted at least two weeks in
advance of the public comment deadline.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
http://www.regulations.gov. HUD strongly encourages commenters to
submit comments electronically. Electronic submission of comments
allows the commenter maximum time to prepare and submit a comment,
ensures timely receipt by HUD, and enables HUD to make comments
immediately available to the public. Comments submitted electronically
through the http://www.regulations.gov website can be viewed by other
commenters and interested members of the public. Commenters should
follow instructions provided on that site to submit comments
electronically.

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

No Facsimile Comments. Facsimile (fax) comments are not acceptable.
Public Inspection of Comments. All comments and communications
submitted to HUD will be available, for public inspection and copying
between 8 a.m. and 5 p.m. weekdays at the above address. Due to
security measures at the HUD Headquarters building, an advance
appointment to review the public comments must be scheduled by calling
the Regulations Division at (202) 708-3055 (this is not a toll-free
number). Copies of all comments submitted are available for inspection
and

[[Page 23923]]

downloading at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Krista Mills, Deputy Assistant
Secretary, Office of Policy, Legislative Initiatives, and Outreach,
Office Fair Housing and Equal Opportunity, Department of Housing and
Urban Development, 451 7th Street SW, Room 5246, Washington, DC 20410;
telephone number 202-402-6577. Individuals with hearing or speech
impediments may access this number via TTY by calling the toll-free
Federal Relay Service during working hours at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

On July 16, 2015, HUD published in the Federal Register its
Affirmatively Furthering Fair Housing (AFFH) final rule.\1\ The AFFH
final rule provided HUD program participants with a revised planning
approach to assist them in meeting their legal obligation to
affirmatively further fair housing. The AFFH regulations are codified
in 24 CFR part 5, subpart A.\2\
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\1\ 80 FR 42357.
\2\ Sec. Sec. 5.150-5.168.
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To assist program participants, the revised approach involves an
``Assessment Tool'' for use in completing the regulatory requirement to
conduct an assessment of fair housing (AFH), as set out in the AFFH
rule. Because of the variations in the HUD program participants subject
to the AFFH rule, HUD has been developing separate Assessment Tools for
use by different types of program participants. In addition to
Assessment Tools for use by public housing agencies (PHAs) and States
and Insular Areas, there is one for local governments, which is the
subject of this notice. It is called the Local Government Assessment
Tool. All the Assessments Tools, because they are information
collection documents, are subject to approval by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act (PRA).\3\
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\3\ 44 U.S.C. 3501 et seq.
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The Local Government Assessment Tool was developed by HUD for use
by local governments that receive Community Development Block Grants,
HOME Investment Partnerships Program, Emergency Solutions Grants, or
Housing Opportunities for Persons With AIDS formula funding from HUD,
when conducting and submitting their AFH. OMB granted PRA approval of
the initial iteration of the Local Government Assessment Tool in
December 2015, and HUD announced the approval and the availability of
the Tool's use by notice published in the Federal Register on December
31, 2015.\4\ The initial iteration of the Local Government Assessment
Tool (known as ``LG2015'') was approved by OMB for a period of one
year. In 2016, HUD began the process for renewed approval of that
information collection device.
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\4\ 80 FR 81840.
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The PRA establishes a notice and comment process for information
collection approvals, involving the publication of two Federal Register
notices, one for 60 days of public comments and another for a 30-day
comment period.\5\ HUD's 60-day notice for renewed approval of the
Local Government Assessment Tool was published on March 23, 2016.\6\
The 30-day notice was published on August 23, 2016, and addressed the
significant issues raised by the comments received on the 60-day
notice.\7\
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\5\ See, e.g., 44 U.S.C. 3506-07
\6\ 81 FR 15546.
\7\ 81 FR 57602.
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HUD announced the renewed PRA approval by OMB of a Local Government
Assessment Tool through Federal Register notice published on January
13, 2017.\8\ In addition to announcing the PRA approval of the Tool,
the January 13, 2017, notice addressed the significant issues raised by
the comments received in response to the 30-day notice. This current
version of the Tool, which is the subject of this notice, is known as
``LG2017.'' \9\
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\8\ 83 FR 4368.
\9\ Both the original iteration (LG2015) and current version
(LG2017) of the Local Government Assessment Tool are available at
https://www.hudexchange.info/resource/5216/assessment-of-fair-housing-tool-for-local-governments/. Program participants with a due
date of October 13, 2017 or earlier were required to use the LG2015
version of the Assessment Tool. Program participants with a due date
of October 14, 2017, or later must use the LG2017 version of the
Assessment Tool. This notice pertains to the current (LG2017)
version.
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II. This Notice--Withdrawal of the Local Government Assessment Tool

Through this notice, HUD announces its withdrawal of the current
version of the Local Government Assessment Tool (OMB Control No: 2529-
0054). As noted above, the PRA establishes a notice-and-comment process
for information collection approvals, but not for withdrawals.
Accordingly, this withdrawal is effective immediately.
In the January 13, 2017, Federal Register notice announcing the
availability of that Assessment Tool, HUD noted its agreement with
commenters that ``a more accurate estimate of the time and cost
involved in preparing the AFH may not be known until program
participants submit their AFHs.'' \10\ Accordingly, that notice stated
that ``HUD intends to also continue to monitor and assess the impact
and burden of implementation of the AFH process on program
participants, including on the range of fair housing outcomes.'' \11\
Consistent with this response to comments, since the publication of
this notice on January 13, 2017, HUD has become aware of significant
deficiencies in the Tool that have made it unduly burdensome for
program participants to use the Tool to create acceptable and
meaningful AFHs with impactful fair housing goals.
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\10\ 82 FR 4391.
\11\ Id.
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HUD's decision is, in part, informed by its review of the initial
round of AFH submissions that were developed using the Local Government
Assessment Tool. This review led HUD to conclude that the Tool is
unworkable based upon: (1) The high failure rate from the initial round
of submissions; and (2) the level of technical assistance HUD provided
to this initial round of 49 AFHs, which cannot be scaled up to
accommodate the increase in the number of local government program
participants with AFH submission deadlines in 2018 and 2019.

1. Experience With the Initial Group of AFH Submissions Demonstrates
That the Tool Is Unduly Burdensome and Ineffective at Assisting Program
Participants With the Creation of Acceptable AFHs

Between October 2016 and December 2017, HUD received, reviewed, and
issued initial decisions on 49 AFHs submitted by local government
program participants. In 2018, the Department conducted an evaluation
of these submissions and found that, among this initial group of 49 AFH
submissions, a significant proportion of program participants had
difficulty completing or understanding how to use the Tool to complete
acceptable AFHs. Indeed, the proportion of submissions determined to be
unacceptable indicates that the Tool was unduly burdensome and not
working as an effective device to assist program participants with the
creation of acceptable and meaningful AFHs with impactful fair housing
goals.
For instance, only 37% of the initial 49 submissions (18/49) had
been determined to be acceptable on initial submission. HUD returned
35% of these (17/49) as unacceptable. Many other AFH submissions (28%
or 14/49) were accepted only after the program participants submitted
revisions and additional information in the form of addendums in
response to HUD's

[[Page 23924]]

technical assistance. Taken together, 63% of the 49 AFHs submitted were
either: (a) Returned as unacceptable and have not been successfully
resubmitted, or (b) accepted only after the program participant
supplied necessary additional information and revisions.
Tellingly, despite the fact that joint and regional submissions
benefit from the sharing of resources by program participants, enabling
them to address fair housing issues from the broader perspective
provided by collaboration, joint and regional collaborations
nonetheless suffered from the same defects as individual AFH
submissions. For example, the largest regional AFH submitted to HUD
involved a total of 19 program participants. In its review of the AFH,
HUD determined that each of the 19 program participants would have met
the regulatory standards for nonacceptance.
Additionally, many jurisdictions found it necessary to incur
additional expense to hire consultants to complete their AFHs.
Particularly in light of the high initial fail rates, this fact further
demonstrates that the Assessment Tool is unduly burdensome as an
information collection device and must be improved to reduce the burden
upon respondents.
HUD's analysis shows that the excessively high rate of unacceptable
AFHs was due, in large measure, to problems with the Local Government
Assessment Tool, and that efficiency gains over time from experience
working with the Tool would be unlikely to address HUD's concerns about
both the inadequacy of the Tool and the burden to program participants
in using the Tool to complete acceptable AFHs. Specifically, HUD's
analysis found a pattern of problems with the initial 49 AFH
submissions, indicating at least seven different categories of critical
problems with the Local Government Assessment Tool: (a) Inadequate
community participation; (b) insufficient use of local data and
knowledge; (c) lack of regional analysis; (d) problems with
identification of contributing factors; (e) prioritization of
contributing factors; (f) problems with setting goals; and (g)
inadequate responses due to duplication of questions. While there may
have been myriad issues that caused an individual AFH submission to
have been non-accepted, in the aggregate, this summary of issues
describes the basis for HUD's determination that the Assessment Tool is
ineffective and unduly burdensome on program participants.
(a) Inadequate Community Participation. A significant cause of the
high non-acceptance rate was inadequate community participation. The
AFFH regulations require program participants to ``give the public
reasonable opportunities for involvement in the development of the AFH
and in the incorporation of the AFH into the consolidated plan, PHA
Plan, and other required planning documents.'' \12\ However, the
questions in the Local Government Assessment Tool regarding community
participation have resulted in confusion. The questions vaguely
incorporate by reference the existing community participation
requirements in HUD's Consolidated Plan regulations \13\ and the
comparable requirements in HUD's Public Housing regulations.\14\ The
questions do not explicitly state the specific requirements or ask that
program participants explain how they met these specific requirements.
As a result, many of the initial AFH submissions did not fulfill these
requirements and/or did not explain in their responses how they
fulfilled the requirements. For example, the regulation at 24 CFR
91.105(b)(4) requires a period of not less than 30 calendar days for
comment by the community; however, one community posted a draft AFH for
public comment on a Friday and submitted the final AFH to HUD the
following Monday, after providing only three days for public
comment.\15\
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\12\ 24 CFR 5.158(a).
\13\ 24 CFR part 91.
\14\ 24 CFR part 903.
\15\ See, e.g., Section III, Questions 1-4 of LG2015 and LG2017.
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(b) Insufficient Use of Local Data and Knowledge. The Assessment
Tool requires local governments to utilize their local data and local
knowledge to supplement the HUD-provided data, or, when appropriate, to
replace HUD-provided data. HUD requires the use of local data only if
the program participants can find and use such data at little or no
cost. While many program participants utilized local data and local
knowledge exactly as intended, a substantial number did not. The
absence of local data, or failure to use it, resulted in an inability
to address issues in a community that have not manifested themselves in
the HUD-provided data. For example, when discussing environmental
health issues, one program participant did not identify multiple
Superfund locations in their jurisdiction. While this is information
that a local government would know, specific Superfund locations are
not noted on HUD maps. The questions in the Tool thus are inadequate to
inform the program participants when to use local data and
knowledge.\16\
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\16\ See, e.g., Section V, Questions B.3.1.a.3/B.3.1.b.3/
B.3.1.c.3/B.3.1.d.3/B.3.1.e.3 (LG2017).
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(c) Lack of Regional Analysis. Questions throughout the Assessment
Tool require program participants to undertake both a jurisdictional
and a regional analysis of fair housing issues. Many of the 49 AFH
submissions did not complete or adequately complete the regional
component of the analysis of fair housing issues. Others may have
completed the analysis but did so in a way that did not compare the
jurisdiction to the region. The regional analysis is often a critical
component of the AFH because fair housing issues may cross
jurisdictional boundaries and demographic trends may extend across
entire regions. HUD provides both jurisdictional and regional data
through the AFFH data and mapping tool for each program participant.
However, the Assessment Tool inadequately guides program participants
in the use of such data to perform the type of regional analysis of
fair housing issues that would be necessary for an acceptable AFH.
(d) Identification of Contributing Factors. Throughout the analysis
of fair housing issues, the Assessment Tool requires that the program
participant identify the contributing factors that create, contribute
to, or perpetuate fair housing issues in their community. However, the
Assessment Tool does not explicitly require the program participant to
connect the identified contributing factors to the fair housing issues
they will address until the final section where the program participant
determines goals to overcome those contributing factors.
Because the Assessment Tool fails to instruct the program
participants to connect these concepts, many of the 49 AFH submissions
identified contributing factors which did not logically connect to the
analysis of fair housing issues undertaken. In addition, factors which
the program participants themselves identified in other portions of the
Assessment Tool were not identified in the responses to these
questions. For example, one AFH included 3 pages of detailed analysis
of Home Mortgage Disclosure Act (HMDA) information outlining the
lending discrimination occurring, yet the program participants did not
identify lending discrimination as a contributing factor.\17\
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\17\ See, e.g., Section V, Questions B.1.3/B.2.3/B.3.3/B.4.3/
C.3/D.7 (LG2015 and LG2017).
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(e) Prioritization of Contributing Factors. The final section of
the

[[Page 23925]]

Assessment Tool requires that the program participant(s) prioritize the
contributing factors identified for each fair housing issue analyzed in
the fair housing analysis sections. The program participant(s) must
then justify the prioritization of the contributing factors. Finally,
the program participant(s) set goals designed to overcome the
contributing factors identified as significant. Jurisdictions must
reasonably exercise their discretion to prioritize contributing
factors. The justification provides an opportunity to explain the
prioritization method selected. Many of the 49 submissions either
included in this question contributing factors not identified in the
analysis of fair housing issues or did not include the contributing
factors that were identified. Many program participants also did not
explain their prioritization method. Without this critical link, the
analysis of fair housing issues and the goals do not connect, making
the AFH unacceptable. The Assessment Tool thus fails to provide
adequate guidance for the prioritization of contributing factors.\18\
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\18\ See, e.g., Section VI, Question 1 (LG2015 and LG2017).
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(f) Goals Section was Highly Problematic. The goals section was an
issue in or the sole reason for the majority of initially non-accepted
AFHs. In several submissions, the goals were not likely to result in
meaningful actions, lacked metrics and milestones, were not linked to
contributing factors and fair housing issues, and generally lacked
adequate discussion.
Program participants are responsible for identifying their own fair
housing goals. However, the goals set by the program participant must
connect to the analysis of fair housing issues and result in meaningful
actions to affirmatively further fair housing.
These goals will then be incorporated into Consolidated Plans and
Public Housing Plans. Along with extensive guidance, HUD provides the
following chart in the assessment tool to assist program participants
in completing this question.

----------------------------------------------------------------------------------------------------------------
Metrics, milestones,
Goal Contributing factors Fair housing issues and timeframe for Responsible program
achievement participant(s)
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----------------------------------------------------------------------------------------------------------------
Discussion:
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Many of the 49 AFHs reviewed were deficient in this section, which
is the culmination of the AFH. Goals were frequently overbroad or would
not result in meaningful actions, for example, to ``increase housing
choice,'' or ``partner with . . . .'' Program participants frequently
failed to connect their fair housing goals to the AFH analysis, or to
the contributing factors or fair housing issues identified in the AFH.
Metrics and milestones for evaluating the accomplishment of fair
housing goals were the most frequent source of deficiency in this
section. However, frequently those established in the AFHs were neither
time-bound nor measurable. The discussion section of the chart is a
program participant's opportunity to explain the goal to ensure that
HUD understands its intention and can often counter-balance
deficiencies in or confusion caused by other sections of the chart.
Many of the program participants did not complete this section or
provided only a vague discussion. HUD is therefore concerned that the
roadmap provided in the Assessment Tool is inadequate to lead to the
development of effective goals.\19\
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\19\ See, e.g., Section VI, Question 2 (LG2015 and LG2017).
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(g) Inadequate Responses Due to Duplication. The Local Government
Assessment Tool contains several questions that have elicited
inadequate responses which merely duplicate previous responses to other
questions within the Tool without responding fully to the specific
question asked. The lack of clarity in the questions led to responses
that merely assumed a question was being asked twice and thus failed to
respond fully to the question at hand. Similarities in the sentence
structure and terminology used in the questions may have caused program
participants to overlook slight or nuanced differences between
questions.\20\
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\20\ See, e.g., Section III, Question 3; Section IV, Question 1;
Section V, Questions B.1.1.b/B.3/B.4/C.1.2/D.2.a (LG2017).
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2. HUD Does Not Have the Resources To Provide a Similar Level of
Technical Assistance to Expanding Numbers of Program Participants in
2018 and 2019

Because of these significant problems with the Tool, HUD has
provided substantial technical assistance to this initial round of
program participants, even for the AFHs that have been accepted. HUD
does not have the resources to continue to provide program participants
with the level of technical assistance that they would need to submit
acceptable AFHs using the current version of the Local Government
Assessment Tool. Despite the fact that many jurisdictions reportedly
have found it necessary to engage consultants to complete the
Assessment Tool, HUD estimates that it has spent over $3.5 million on
technical assistance for the initial round of 49 AFH submissions. In
addition to contract technical assistance services, significant HUD
staff resources are required to review an AFH for acceptability and to
communicate with program participants regarding HUD's determination to
accept or non-accept an AFH.
Although HUD anticipated providing technical assistance to program
participants to assist them in submitting acceptable assessments, the
amount of assistance that has proved to be required with the current
version of the Local Government Assessment Tool is not sustainable
particularly in light of the significant increase in AFH submissions
scheduled to occur in 2018 and 2019. In 2018, for example, 104 local
government program participants are scheduled to submit AFHs to HUD. In
2019, the number of local governments originally scheduled to submit
their AFHs rises to 752. The level of technical assistance provided to
the initial 49 participants could not be extended to these numbers of
AFHs due in 2018 and 2019.
And due to the deficiencies in the Local Government Assessment
Tool, HUD believes that, without the withdrawal and revision of the
Tool, a high percentage of AFHs in future rounds of submissions would
not be initially acceptable. Because the problems with the Tool have
created the above-described patterns of deficiencies in AFH submissions
even from collaborative groups leveraging the resources of multiple
jurisdictions, HUD

[[Page 23926]]

does not believe that the level of technical assistance it has been
required to provide to the initial 49 AFHs would decrease meaningfully
as result of expanded usage of the Tool. As a result, in 2018 and 2019,
HUD would not be able to provide all program participants with the
extent of assistance provided to those in the initial round of AFHs,
meaning that these participants would not have the help they would need
to correct their assessments. This would lead to a great deal of
uncertainty for program participants as to how to submit an acceptable
AFH. Such uncertainty would, in turn, lead to uncertainty regarding the
status of their HUD-funded programs so long as they do not have an
accepted AFH in place.

3. In Light of HUD and Local Government Program Participants' Resource
Limitations, Temporary Withdrawal of the Local Government Assessment
Tool Is Necessary as the Most Efficient Way To Resolve the Tool's
Significant Deficiencies

HUD is withdrawing the Tool to produce a more effective and less
burdensome Assessment Tool. These improvements to the Tool will make it
more effective in assisting program participants with the creation of
meaningful assessments with impactful fair housing goals to help them
plan to fulfill their legal obligation to affirmatively further fair
housing. Withdrawal and revision of the Assessment Tool will also
conserve HUD's limited resources, allowing HUD to use those limited
resources more effectively to help program participants produce
meaningful improvements in the communities they serve. HUD also
believes that investing additional time to improve its Data and Mapping
Tool (AFFH-T) and the User Interface (AFFH-UI) will result in more
substantive assessments with greater fair housing impact.

III. Effects of Withdrawal of Assessment Tool

The AFFH regulations at 24 CFR 5.160(a)(1)(ii) provide that if the
specified AFH submission deadline results in a submission date that is
less than 9 months after the Assessment Tool designed for the relevant
type of program participant is available for use, ``the
participants(s)' submission deadline will be extended . . . to a date
that will be not less than 9 months from the date of publication of the
Assessment Tool.'' For example, in the case of the Assessment Tool for
use by PHAs, HUD published a notice in January 2017, advising that the
Assessment Tool had been approved pursuant to the PRA process, but was
not yet available for use by PHAs because the HUD data needed to make
the Assessment Tool workable was not yet available.\21\ Accordingly,
under 24 CFR 5.160(a)(1)(ii), the deadline for first AFH submissions by
PHAs was extended until a workable Assessment Tool becomes available.
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\21\ 82 FR 4373.
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Similarly, in the case of the Local Government Assessment Tool, HUD
has determined that the current iteration of the Tool, although
published after PRA procedures, is substantively deficient and unduly
burdensome because it has resulted in great expense to program
participants and HUD, yet it is not adequately guiding participants
through the creation of acceptable AFHs. Accordingly, HUD is
immediately withdrawing the Local Government Assessment Tool. As a
result, local jurisdictions do not have an approved Assessment Tool
that is published and available for use in completing the AFHs.
Pursuant to 24 CFR 5.160(a)(1)(ii), the deadline for local government
program participants to submit a first AFH is thus extended to a date
not less than 9 months following the future publication of a revised
and approved Local Government Assessment Tool. HUD is immediately
seeking comment on ways to make the Local Government Assessment Tool
workable and effective. Pursuant to 24 CFR 5.160(a)(1)(ii), the future
published notice announcing that a revised and approved Local
Government Assessment Tool is available will also provide program
participants with the revised due date for first AFH submissions.
Consolidated plan program participants that have not yet submitted
their first AFHs must nonetheless continue to comply with existing,
ongoing legal obligations to affirmatively further fair housing (legal
obligations which AFHs were merely intended to help participants plan
to fulfill). Pursuant to 24 CFR 5.160(a)(3), until a consolidated plan
program participant submits its first AFH, it will continue to provide
the AFFH certification with its Consolidated Plan, in accordance with
the requirements that existed prior to August 17, 2015. Those
requirements obligate a program participant to certify that it will
affirmatively further fair housing, which means that it will conduct an
analysis of impediments (AI) to fair housing choice within the
jurisdiction, take appropriate actions to overcome the effects of any
impediments identified through that analysis, and maintain records
reflecting the analysis and actions.
For Consolidated plan program participants that are starting a new
3-5-year Consolidated plan cycle that begins before their due date for
an AFH, the AI should continue to be updated in accordance with the
HUD, Fair Housing Planning Guide (1996), available at https://www.hud.gov/sites/documents/FHPG.PDF. The data HUD has developed in
order to implement the AFFH rule will remain available for program
participants to use in conducting their AIs. HUD encourages program
participants to collaborate to develop a regional AI, as regional
collaborations provide an opportunity for program participants to share
resources and address fair housing issues that cross jurisdictional
boundaries.\22\
Program participants that have already submitted an AFH which has
been accepted by HUD must continue to execute the goals of that
accepted AFH and are not required to conduct a separate AI. HUD will
discontinue the review of AFHs submitted by local governments that are
currently under review and will not render a decision to accept or not
accept. In cases where HUD denied acceptance of an AFH submission that
used the withdrawn Local Government Assessment Tool and the program
participant(s) were preparing to re-submit an AFH, the participant(s)
should not submit a revised AFH. Finally, local governments prepared to
submit their first AFH should not submit an AFH to HUD. Local
governments that have not received an accept or non-accept
determination from HUD, or that have received a non-accept but will no
longer be required to resubmit their AFH, are still required to prepare
an AI, as described above in this notice. Program participants must
continue to fulfill their legal obligations to affirmatively further
fair housing.
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\22\ Please refer to HUD's 2017 interim guidance for additional
information on collaboration, specifically the Q&A captioned: ``How
can States Collaborate with Local Governments or PHAs?''. The
guidance is available at: https://www.hudexchange.info/resources/documents/Interim-Guidance-for-Program-Participants-on-Status-of-Assessment-Tools-and-Submission-Options.pdf. This guidance is
generally applicable to all types of program participants.
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IV. Request for Public Comment on Improvements to the Local Government
Assessment Tool

This notice offers the opportunity for the public to provide
information and recommendations on revisions to the Local Government
Assessment Tool. HUD welcomes and will consider all

[[Page 23927]]

responses to this notice when reconsidering the Assessment Tool

Dated: May 18, 2018.
Anna Maria Far[iacute]as,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 2018-11146 Filed 5-21-18; 4:15 pm]
BILLING CODE 4210-67-P

23922 Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices

consultancies, and research grants or conflict with the requirements of PHSA ADDRESSES: Interested persons are
contracts. The selected candidates must Section 337. invited to submit comments to the
fill out the U.S. Office of Government Dated: May 17, 2018. Office of the General Counsel, Rules
Ethics (OGE) Confidential Financial Jay Womack, Docket Clerk, Department of Housing
Disclosure Report, OGE Form 450. and Urban Development, 451 Seventh
Acting Deputy Director, Division of Executive
Disclosure of this information is Secretariat. Street SW, Room 10276, Washington,
necessary to determine if the selected DC 20410–0001. Communications
[FR Doc. 2018–11034 Filed 5–22–18; 8:45 am]
candidate is involved in any activity should refer to the above docket number
BILLING CODE 4165–15–P
that may pose a potential conflict with and title and should contain the
their official duties as a member of the information specified in the ‘‘Request
committee. for Comments’’ section. There are two
A nomination package should include DEPARTMENT OF HOUSING AND methods for submitting public
the following information for each URBAN DEVELOPMENT comments.
nominee: (1) A letter of nomination [Docket No. FR–5173–N–17] 1. Submission of Comments by Mail.
from an employer, a colleague, or a Comments may be submitted by mail to
professional organization stating the Affirmatively Furthering Fair Housing: the Regulations Division, Office of
name, affiliation, and contact Withdrawal of the Assessment Tool for General Counsel, Department of
information for the nominee, the basis Local Governments Housing and Urban Development, 451
for the nomination (i.e., what specific 7th Street SW, Room 10276,
attributes, perspectives, and/or skills AGENCY: Office of the Assistant
Secretary for Fair Housing and Equal Washington, DC 20410–0500. Due to
does the individual possess that would security measures at all federal agencies,
benefit the workings of the NACNHSC, Opportunity, HUD.
ACTION: Notice.
however, submission of comments by
and the nominee’s field(s) of expertise); mail often results in delayed delivery.
(2) a letter of interest from the nominee SUMMARY: HUD announces the To ensure timely receipt of comments,
stating the reasons they would like to withdrawal of the Local Government HUD recommends that comments
serve on the NACNHSC; (3) a Assessment Tool developed by HUD for submitted by mail be submitted at least
biographical sketch of the nominee, a use by local governments that receive two weeks in advance of the public
copy of his/her curriculum vitae, and Community Development Block Grants, comment deadline.
his/her contact information (address, HOME Investment Partnerships 2. Electronic Submission of
daytime telephone number, and email Program, Emergency Solutions Grants, Comments. Interested persons may
address); and (4) the name, address, or Housing Opportunities for Persons submit comments electronically through
daytime telephone number, and email With AIDS formula funding from HUD the Federal eRulemaking Portal at
address at which the nominator can be when conducting and submitting their http://www.regulations.gov. HUD
contacted. own Assessment of Fair Housing (AFH) strongly encourages commenters to
HRSA will collect and retain submit comments electronically.
under the Affirmatively Furthering Fair
nomination packages to create a pool of Electronic submission of comments
Housing (AFFH) regulations. Through
possible future NACNHSC voting allows the commenter maximum time to
Federal Register notice published on
members. When a vacancy occurs, the prepare and submit a comment, ensures
agency will review nomination packages January 13, 2017, HUD announced the
Office of Management and Budget’s timely receipt by HUD, and enables
from the appropriate category and may
renewed approval of the Assessment HUD to make comments immediately
contact nominees at that time.
Tool under the Paperwork Reduction available to the public. Comments
Nominations should be updated and
Act. Since that time, HUD has become submitted electronically through the
resubmitted every 4 years to continue to
aware of significant deficiencies in the http://www.regulations.gov website can
be considered for committee vacancies.
HHS strives to ensure a balance of the Tool impeding completion of be viewed by other commenters and
membership of NACNHSC in terms of meaningful assessments by program interested members of the public.
points of view presented and the participants. HUD therefore is Commenters should follow instructions
committee’s function and makes every withdrawing the Local Government provided on that site to submit
effort to ensure the representation of Assessment Tool because it is comments electronically.
women, all ethnic and racial groups, inadequate to accomplish its purpose of Note: To receive consideration as public
and people with disabilities on HHS guiding program participants to produce comments, comments must be submitted
Federal Advisory Committees. meaningful AFHs. Following this through one of the two methods specified
Therefore, we encourage nominations of withdrawal of the Local Government above. Again, all submissions must refer to
Assessment Tool, HUD will review the the docket number and title of the notice.
qualified candidates from these groups
and endeavor to make appointments to Assessment Tool and its function under No Facsimile Comments. Facsimile
NACNHSC without discrimination on the AFFH regulations to make it less (fax) comments are not acceptable.
basis of age, race, ethnicity, gender, burdensome and more helpful in Public Inspection of Comments. All
sexual orientation, disability, and creating impactful fair housing goals. comments and communications
cultural, religious, or socioeconomic Accordingly, this withdrawal notice submitted to HUD will be available, for
status. also solicits comments and suggestions public inspection and copying between
Authority: Section 337 of the Public geared to creating a less burdensome 8 a.m. and 5 p.m. weekdays at the above
Health Service Act (42 U.S.C. 254j), as and more helpful AFH Tool for local address. Due to security measures at the
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amended. NACNHSC is governed by governments. HUD Headquarters building, an advance
provisions of the Federal Advisory DATES: appointment to review the public
Committee Act (FACA), as amended (5 Applicability Date: May 23, 2018. comments must be scheduled by calling
U.S.C. Appendix 2), which sets for the Comment Due Date: Comments on the Regulations Division at (202) 708–
formation and use of advisory improvement to the AFH Tool for Local 3055 (this is not a toll-free number).
committees, and applies to the extent Governments are due on or before July Copies of all comments submitted are
that the provisions of FACA do not 23, 2018. available for inspection and

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Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices 23923

downloading at http:// published in the Federal Register on AFHs.’’ 10 Accordingly, that notice
www.regulations.gov. December 31, 2015.4 The initial stated that ‘‘HUD intends to also
FOR FURTHER INFORMATION CONTACT:
iteration of the Local Government continue to monitor and assess the
Krista Mills, Deputy Assistant Secretary, Assessment Tool (known as ‘‘LG2015’’) impact and burden of implementation of
Office of Policy, Legislative Initiatives, was approved by OMB for a period of the AFH process on program
and Outreach, Office Fair Housing and one year. In 2016, HUD began the participants, including on the range of
process for renewed approval of that fair housing outcomes.’’ 11 Consistent
Equal Opportunity, Department of
information collection device. with this response to comments, since
Housing and Urban Development, 451
The PRA establishes a notice and the publication of this notice on January
7th Street SW, Room 5246, Washington, comment process for information 13, 2017, HUD has become aware of
DC 20410; telephone number 202–402– collection approvals, involving the significant deficiencies in the Tool that
6577. Individuals with hearing or publication of two Federal Register have made it unduly burdensome for
speech impediments may access this notices, one for 60 days of public program participants to use the Tool to
number via TTY by calling the toll-free comments and another for a 30-day create acceptable and meaningful AFHs
Federal Relay Service during working comment period.5 HUD’s 60-day notice with impactful fair housing goals.
hours at 1–800–877–8339. for renewed approval of the Local HUD’s decision is, in part, informed
SUPPLEMENTARY INFORMATION: Government Assessment Tool was by its review of the initial round of AFH
I. Background published on March 23, 2016.6 The 30- submissions that were developed using
day notice was published on August 23, the Local Government Assessment Tool.
On July 16, 2015, HUD published in 2016, and addressed the significant This review led HUD to conclude that
the Federal Register its Affirmatively issues raised by the comments received the Tool is unworkable based upon: (1)
Furthering Fair Housing (AFFH) final on the 60-day notice.7 The high failure rate from the initial
rule.1 The AFFH final rule provided HUD announced the renewed PRA round of submissions; and (2) the level
HUD program participants with a approval by OMB of a Local of technical assistance HUD provided to
revised planning approach to assist Government Assessment Tool through this initial round of 49 AFHs, which
them in meeting their legal obligation to Federal Register notice published on cannot be scaled up to accommodate the
affirmatively further fair housing. The January 13, 2017.8 In addition to increase in the number of local
AFFH regulations are codified in 24 announcing the PRA approval of the government program participants with
CFR part 5, subpart A.2 Tool, the January 13, 2017, notice AFH submission deadlines in 2018 and
To assist program participants, the addressed the significant issues raised 2019.
revised approach involves an by the comments received in response
‘‘Assessment Tool’’ for use in to the 30-day notice. This current 1. Experience With the Initial Group of
completing the regulatory requirement version of the Tool, which is the subject AFH Submissions Demonstrates That
to conduct an assessment of fair housing of this notice, is known as ‘‘LG2017.’’ 9 the Tool Is Unduly Burdensome and
(AFH), as set out in the AFFH rule. Ineffective at Assisting Program
II. This Notice—Withdrawal of the Participants With the Creation of
Because of the variations in the HUD
Local Government Assessment Tool Acceptable AFHs
program participants subject to the
AFFH rule, HUD has been developing Through this notice, HUD announces Between October 2016 and December
separate Assessment Tools for use by its withdrawal of the current version of 2017, HUD received, reviewed, and
different types of program participants. the Local Government Assessment Tool issued initial decisions on 49 AFHs
In addition to Assessment Tools for use (OMB Control No: 2529–0054). As noted submitted by local government program
by public housing agencies (PHAs) and above, the PRA establishes a notice-and- participants. In 2018, the Department
States and Insular Areas, there is one for comment process for information conducted an evaluation of these
local governments, which is the subject collection approvals, but not for submissions and found that, among this
of this notice. It is called the Local withdrawals. Accordingly, this initial group of 49 AFH submissions, a
Government Assessment Tool. All the withdrawal is effective immediately. significant proportion of program
Assessments Tools, because they are In the January 13, 2017, Federal participants had difficulty completing
information collection documents, are Register notice announcing the or understanding how to use the Tool to
subject to approval by the Office of availability of that Assessment Tool, complete acceptable AFHs. Indeed, the
Management and Budget (OMB) under HUD noted its agreement with proportion of submissions determined
the Paperwork Reduction Act (PRA).3 commenters that ‘‘a more accurate to be unacceptable indicates that the
The Local Government Assessment estimate of the time and cost involved Tool was unduly burdensome and not
Tool was developed by HUD for use by in preparing the AFH may not be known working as an effective device to assist
local governments that receive until program participants submit their program participants with the creation
Community Development Block Grants, 4 80
of acceptable and meaningful AFHs
FR 81840.
HOME Investment Partnerships 5 See,
with impactful fair housing goals.
e.g., 44 U.S.C. 3506–07
Program, Emergency Solutions Grants, 6 81 FR 15546.
For instance, only 37% of the initial
or Housing Opportunities for Persons 7 81 FR 57602. 49 submissions (18/49) had been
With AIDS formula funding from HUD, 8 83 FR 4368. determined to be acceptable on initial
when conducting and submitting their 9 Both the original iteration (LG2015) and current submission. HUD returned 35% of these
AFH. OMB granted PRA approval of the version (LG2017) of the Local Government (17/49) as unacceptable. Many other
Assessment Tool are available at https:// AFH submissions (28% or 14/49) were
initial iteration of the Local Government
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www.hudexchange.info/resource/5216/assessment-
Assessment Tool in December 2015, and of-fair-housing-tool-for-local-governments/. accepted only after the program
HUD announced the approval and the Program participants with a due date of October 13, participants submitted revisions and
availability of the Tool’s use by notice 2017 or earlier were required to use the LG2015 additional information in the form of
version of the Assessment Tool. Program addendums in response to HUD’s
participants with a due date of October 14, 2017,
1 80 FR 42357. or later must use the LG2017 version of the
2 §§ 5.150–5.168. 10 82 FR 4391.
Assessment Tool. This notice pertains to the current
3 44 U.S.C. 3501 et seq. (LG2017) version. 11 Id.

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Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices 23925

Assessment Tool requires that the analysis of fair housing issues or did not were not linked to contributing factors
program participant(s) prioritize the include the contributing factors that and fair housing issues, and generally
contributing factors identified for each were identified. Many program lacked adequate discussion.
fair housing issue analyzed in the fair participants also did not explain their Program participants are responsible
housing analysis sections. The program prioritization method. Without this for identifying their own fair housing
participant(s) must then justify the critical link, the analysis of fair housing goals. However, the goals set by the
prioritization of the contributing factors. issues and the goals do not connect,
program participant must connect to the
Finally, the program participant(s) set making the AFH unacceptable. The
analysis of fair housing issues and result
goals designed to overcome the Assessment Tool thus fails to provide
in meaningful actions to affirmatively
contributing factors identified as adequate guidance for the prioritization
further fair housing.
significant. Jurisdictions must of contributing factors.18
reasonably exercise their discretion to (f) Goals Section was Highly These goals will then be incorporated
prioritize contributing factors. The Problematic. The goals section was an into Consolidated Plans and Public
justification provides an opportunity to issue in or the sole reason for the Housing Plans. Along with extensive
explain the prioritization method majority of initially non-accepted AFHs. guidance, HUD provides the following
selected. Many of the 49 submissions In several submissions, the goals were chart in the assessment tool to assist
either included in this question not likely to result in meaningful program participants in completing this
contributing factors not identified in the actions, lacked metrics and milestones, question.

Metrics, Responsible
Contributing Fair housing milestones, and
Goal program
factors issues timeframe for participant(s)
achievement

Discussion:

Many of the 49 AFHs reviewed were within the Tool without responding significant HUD staff resources are
deficient in this section, which is the fully to the specific question asked. The required to review an AFH for
culmination of the AFH. Goals were lack of clarity in the questions led to acceptability and to communicate with
frequently overbroad or would not responses that merely assumed a program participants regarding HUD’s
result in meaningful actions, for question was being asked twice and determination to accept or non-accept
example, to ‘‘increase housing choice,’’ thus failed to respond fully to the an AFH.
or ‘‘partner with . . . .’’ Program question at hand. Similarities in the Although HUD anticipated providing
participants frequently failed to connect sentence structure and terminology used technical assistance to program
their fair housing goals to the AFH in the questions may have caused participants to assist them in submitting
analysis, or to the contributing factors or program participants to overlook slight acceptable assessments, the amount of
fair housing issues identified in the or nuanced differences between assistance that has proved to be required
AFH. questions.20 with the current version of the Local
Metrics and milestones for evaluating Government Assessment Tool is not
the accomplishment of fair housing 2. HUD Does Not Have the Resources To sustainable particularly in light of the
goals were the most frequent source of Provide a Similar Level of Technical significant increase in AFH submissions
deficiency in this section. However, Assistance to Expanding Numbers of scheduled to occur in 2018 and 2019. In
frequently those established in the Program Participants in 2018 and 2019 2018, for example, 104 local government
AFHs were neither time-bound nor Because of these significant problems program participants are scheduled to
measurable. The discussion section of with the Tool, HUD has provided submit AFHs to HUD. In 2019, the
the chart is a program participant’s substantial technical assistance to this number of local governments originally
opportunity to explain the goal to initial round of program participants, scheduled to submit their AFHs rises to
ensure that HUD understands its even for the AFHs that have been 752. The level of technical assistance
intention and can often counter-balance accepted. HUD does not have the provided to the initial 49 participants
deficiencies in or confusion caused by resources to continue to provide could not be extended to these numbers
other sections of the chart. Many of the program participants with the level of of AFHs due in 2018 and 2019.
program participants did not complete technical assistance that they would And due to the deficiencies in the
this section or provided only a vague need to submit acceptable AFHs using Local Government Assessment Tool,
discussion. HUD is therefore concerned the current version of the Local HUD believes that, without the
that the roadmap provided in the Government Assessment Tool. Despite withdrawal and revision of the Tool, a
Assessment Tool is inadequate to lead the fact that many jurisdictions high percentage of AFHs in future
to the development of effective goals.19 reportedly have found it necessary to rounds of submissions would not be
(g) Inadequate Responses Due to engage consultants to complete the initially acceptable. Because the
Duplication. The Local Government Assessment Tool, HUD estimates that it problems with the Tool have created the
Assessment Tool contains several has spent over $3.5 million on technical above-described patterns of deficiencies
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questions that have elicited inadequate assistance for the initial round of 49 in AFH submissions even from
responses which merely duplicate AFH submissions. In addition to collaborative groups leveraging the
previous responses to other questions contract technical assistance services, resources of multiple jurisdictions, HUD
18 See, e.g., Section VI, Question 1 (LG2015 and 19 See, e.g., Section VI, Question 2 (LG2015 and 20 See, e.g., Section III, Question 3; Section IV,

LG2017). LG2017). Question 1; Section V, Questions B.1.1.b/B.3/B.4/
C.1.2/D.2.a (LG2017).

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Document Created: 2018-05-22 23:48:47
Document Modified: 2018-05-22 23:48:47

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice.
Dates		Applicability Date: May 23, 2018.
Contact		Krista Mills, Deputy Assistant Secretary, Office of Policy, Legislative Initiatives, and Outreach, Office Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 7th Street SW, Room 5246, Washington, DC 20410; telephone number 202-402-6577. Individuals with hearing or speech impediments may access this number via TTY by calling the toll-free Federal Relay Service during working hours at 1-800-877-8339.
FR Citation		83 FR 23922