[Federal Register Volume 80, Number 10 (Thursday, January 15, 2015)]
[Proposed Rules]
[Pages 2062-2064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-00468]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 5

[Docket No. FR-5173-N-03]


Affirmatively Furthering Fair Housing: Re-Opening Public Comment 
Period on Subject of Later First AFH Submission Date for Certain 
Entities

AGENCY: Office of General Counsel, HUD.

ACTION: Proposed rule; re-opening of comment period for a specific 
topic.

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SUMMARY: On July 19, 2013, HUD published a proposed rule on 
Affirmatively Furthering Fair Housing. The comment period for the 
proposed rule closed on September 17, 2013. HUD received over 1,000 
public comments in response to the proposed rule. While many commenters 
expressed outright support for HUD's proposal, and other commenters 
expressed outright opposition, the majority of the commenters provided 
valuable feedback and suggestions on HUD's proposal.
    One area of concern expressed by many commenters was the ability of 
program participants, those that are small or those that receive small 
grants or allocations of HUD funds, to prepare and submit the 
Assessment of Fair Housing (AFH) in accordance with the process set out 
in HUD's proposed rule, and by the proposed submission deadline. 
Commenters comprised of State jurisdictions or their representatives 
also expressed concern about the ability to complete an AFH, which they 
commented did not take into consideration the unique role of States. 
These commenters stated that HUD's proposed AFH was tailored to 
entitlement jurisdictions.
    In response to these comments, HUD is considering providing certain 
HUD program participants--States, Insular Areas, qualified PHAs, 
jurisdictions receiving a small Community Development Block (CDBG) 
grant (which is based on a percentage of the CDBG formula 
appropriation, as described in this notice)--with the option of 
submitting their first AFH at a date later than would otherwise be 
required for program participants that are not States or Insular Areas, 
not qualified PHAs, and are not grantees receiving a small CDBG grant, 
as proposed to be defined in this notice.
    This supplemental notice of proposed rulemaking therefore re-opens 
the public comment period on the Affirmatively Furthering Fair Housing 
proposed rule for an additional 30 days solely to seek comment on these 
specific issues. HUD is not soliciting comment on any other issues 
related to HUD's July 19, 2013, proposed rule.

DATES: The comment period for a specific topic in the proposed rule 
published on July 19, 2013 (78 FR 43709), is re-opened. The due date 
for comments discussed in this supplemental notice of proposed 
rulemaking is February 17, 2015.

ADDRESSES: Interested persons are invited to submit comments responsive 
to this request for information to the Regulations Division, Office of 
General Counsel, Department of Housing and Urban Development, 451 7th 
Street SW., Room 10276, Washington, DC 20410-7000. Communications must 
refer to the above docket number and title and should contain the 
information specified in the ``Request for Comments'' of this 
supplemental notice of proposed rulemaking.
    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

[[Page 2063]]

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 http://www.regulations.gov Web site can be viewed by interested members of the 
public. Commenters should follow instructions provided on that site to 
submit comments electronically.
    Submission of Hard Copy Comments. Comments may be submitted by mail 
or hand delivery. To ensure that the information is fully considered by 
all of the reviewers, each commenter submitting hard copy comments, by 
mail or hand delivery, should submit comments or requests to the 
address above, addressed to the attention of the Regulations Division. 
Due to security measures at all federal agencies, submission of 
comments or requests by mail often result in delayed delivery. To 
ensure timely receipt of comments, HUD recommends that any comments 
submitted by mail be submitted at least 2 weeks in advance of the 
public comment deadline. All hard copy comments received by mail or 
hand delivery are a part of the public record and will be posted to 
http://www.regulations.gov without change.

    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 
this supplemental notice of proposed rulemaking.

    No Facsimile Comments. Facsimile (FAX) comments are not acceptable.
    Public Inspection of Comments. All comments submitted to HUD 
regarding this supplemental notice of proposed rulemaking will be 
available, without charge, 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 
documents must be scheduled by calling the Regulation Division at 202-
708-3055 (this is not a toll-free number). Copies of all comments 
submitted will also be available for inspection and downloading at 
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Camille Acevedo, Associate General 
Counsel for Legislation and Regulations, Office of General Counsel, 
Department of Housing and Urban Development, 451 7th Street SW., Room 
10282, Washington, DC 20410; telephone number 202-708-1793 (this is not 
a toll-free number). Individuals with hearing- or speech-impairments 
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 19, 2013, at 78 FR 43709, HUD published in the Federal 
Register rulemaking that proposed a new fair housing planning process 
to assist program participants in carrying out their duty to 
affirmatively further fair housing, a duty required under the authority 
of the Fair Housing Act (title VIII of the Civil Rights Act of 1968, 42 
U.S.C. 3601-3619).\1\ Section 808(e)(5) of the Fair Housing Act (42 
U.S.C. 3608(e)(5)) requires that HUD programs and activities be 
administered in a manner that affirmatively furthers the policies of 
the Fair Housing Act. The proposed rule presented a proposed definition 
of the term ``affirmatively furthering fair housing'' for purposes of 
program participants' planning processes and an approach to fair 
housing planning that HUD believes would better aid program 
participants fulfill their statutory obligation to affirmatively 
further fair housing in accordance with Fair Housing Act requirements.
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    \1\ The July 19, 2013, proposed rule can be found at http://www.gpo.gov/fdsys/pkg/FR-2013-07-19/pdf/2013-16751.pdf.
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    As noted in the Summary of this supplemental notice of proposed 
rulemaking, HUD received over 1,000 comments in response to the 
proposed rule.\2\ While HUD continues to review and consider the 
helpful and thoughtful questions, recommendations, and concerns raised 
by the public commenters, this document seeks comment on the limited 
issue of a delayed submission of the first AFH for certain entities.
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    \2\ All public comments on HUD's July 19, 2013, proposed rule 
can be found at http://www.regulations.gov/#!docketDetail;D=HUD-
2013-0066.
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    As more fully discussed below, HUD is considering providing a later 
submission date for the first AFH to be completed by qualified PHAs, 
and entitlement jurisdictions that receive small CDBG grants (as 
defined below), States, and Insular Areas.
    In the July 19, 2013, proposed rule, HUD specifically sought public 
comment on issues pertaining to the subject matter of this document. 
Question 12 of the proposed rule, at 78 FR 43724, solicited comment on 
whether there are any AFH requirements that should be modified for 
States. Question 13 of the proposed rule, at 78 FR 43724, solicited 
comment on whether there are any AFH requirements that should be 
modified for small program participants, such as small units of general 
local government and small public housing agencies (PHAs).
    HUD appreciates the comments specifically directed to these issues, 
and solicits further comment on these issues as modified and elaborated 
upon in this supplemental notice of proposed rulemaking.

II. Specific Requests for Comment--Later AFH Submission Date for 
Certain Entities

    HUD takes the opportunity in this document to assure all program 
participants that HUD intends to provide all program participants with 
sufficient time to prepare and submit their first AFH. HUD agrees with 
commenters that not all program participants are the same; that they 
vary in such aspects as size, capacity, the amount of HUD resources 
generally received annually, the scope of responsibilities under 
various HUD programs; and any or all of such aspects may factor in 
their ability to timely respond to new regulatory requirements. To 
address this concern, HUD is considering providing the following 
categories of program participants with a later submission date for 
their first AFH.
    Along with the consideration to provide certain entities additional 
time to complete their AFHs, as described in this supplemental notice 
of proposed rulemaking, HUD is considering a staggered AFH submission 
approach, as recommended by many commenters.
    States and Insular Areas: HUD acknowledges the comments stating 
that the AFH process proposed in the July 19, 2013, rulemaking is 
better suited for local jurisdictions, and not States and Insular 
Areas. In the 60-day notice on the AFFH Assessment Tool that HUD 
published in the Federal Register on September 26, 2014, at 79 FR 
57949, in accordance with the Paperwork Reduction Act, HUD advised that 
the Assessment Tool that is the subject of the 60-day notice is 
primarily designed for use by entitlement jurisdictions, other than 
States, and for joint submissions by entitlement jurisdictions and 
public housing agencies (PHAs). (See 79 FR 57950-57951.) \3\ The notice 
also stated that HUD is considering developing program participant-
specific Assessment Tools, such as one specifically for States and 
Insular Areas,

[[Page 2064]]

and that: ``It is HUD's intention to have any program-participant-
specific Assessment Tools developed by HUD available for public comment 
at the 30-day notice required under the Paperwork Reduction Act.''
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    \3\ HUD's proposed Assessment Tool can be found at http://www.gpo.gov/fdsys/pkg/FR-2014-09-26/pdf/2014-22956.pdf, and the 
public comments can be found at http://www.regulations.gov/#!docketDetail;D=HUD-2014-0080.
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    Upon further consideration, HUD has decided to design a separate 
Assessment Tool for States and Insular Areas. HUD believes that a 
separate Assessment Tool for States and Insular Areas would address 
commenters' concerns about the AFH approach being better suited for 
entitlement jurisdictions. This separate Assessment Tool will not be 
provided for public comment as part of the 30-day notice for the 
Assessment Tool presented in the September 26, 2014, notice. Rather, 
HUD will have the Assessment Tool for States and Insular Areas 
separately undergo the full notice and comment process (a 60-day notice 
and a 30-day notice) under the Paperwork Reduction Act.
    Specific solicitation of comment #1: HUD welcomes public comment on 
the proposal to delay submission of the first AFH for States and 
Insular Areas.
    Qualified PHAs: HUD is also considering delaying the date of 
submission of the first AFH for PHAs that meet the criteria of a 
``qualified PHA,'' as defined in section 2702 of title VII of the 
Housing and Economic Recovery Act (HERA).\4\ Section 2702 of HERA 
defines ``qualified PHA'' as a PHA: (1) For which the sum of (i) the 
number of public housing dwelling units administered by PHA, and (ii) 
the number of vouchers under section 8(o) of the United States Housing 
Act of 1937 (42 U.S.C. 1437f(o)) administered by the PHA is 550 or 
fewer; and (2) that is not designated under section 6(j)(2) of the 
United States Housing Act as a troubled PHA, and does not have a 
failing score under the Section 8 Management Assessment Program during 
the prior 12 months. HUD codified this statutory definition in its 
regulations on Public Housing Agency Plans at 24 CFR part 903, and the 
definition of ``qualified PHA'' is found at Sec.  903.3(c).
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    \4\ Public Law 110-289, 122 Stat. 2654, approved July 30, 2008, 
see 122 Stat 2863.
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    HERA defined qualified PHAs to exempt such PHAs, which are small 
PHAs, from the burden of preparing and submitting an annual PHA Plan. 
Given that Congress has determined that qualified PHAs should have 
reduced administrative burdens, HUD believes it is appropriate to 
provide these agencies with more time to submit their first AFH.
    Specific solicitation of comment #2: HUD seeks comment on a delayed 
submission date of the first AFH due for qualified PHAs.
    Entitlement Jurisdictions Receiving Small CDBG Grants (Grants of 
Approximately $350,000 or Less): In addition to recognizing the burdens 
faced by small entities, such as small PHAs, HUD recognizes that the 
amount of HUD funding that many entitlement jurisdictions receive is 
not substantial. HUD has discussed the challenges faced by entitlement 
jurisdictions receiving small CDBG grants in HUD's Congressional 
Justifications (CJ) provided for Fiscal Years 2014 and 2013.\5\
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    \5\ See pages P-15 and P-16 for FY 2013 CJ at http://portal.hud.gov/hudportal/documents/huddoc?id=CommunityDevelopmentFund.pdf; and page Q24 of the FY 2014 
CJ at http://portal.hud.gov/hudportal/documents/huddoc?id=COMDEVFUND.pdf.
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    In the two CJs, HUD discussed that the median CDBG grant size for 
entitlement communities in FY 2012 was just under $800,000, but that 
almost 15 percent of CDBG entitlement grantees received an allocation 
of less than $300,000 in 2012. HUD advised that given the very limited 
amount of money the grantees can use for planning and administrative 
costs ($60,000 for a $300,000 grant), HUD expressed concern about the 
ability of grantees to effectively sustain their programs with such 
small dollar-amount grants. In response to such concern and in order to 
assist entitlement jurisdictions receiving small CDBG grants, in 
October 4, 2012, HUD hosted a webinar for ``Small Grantees (CDBG 
Grantee < $350,000 Per Year).'' The purpose of the webinar was to 
invite small CDBG grantees to express their concerns, and to address 
certain topics posed by HUD.\6\
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    \6\ See https://www.hudexchange.info/training-events/courses/
moving-cdbg-forward-small-grantees-cdbg-grant--350-000-per-year-
webinar/.
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    Although the focus in the CJs and the webinar have been on dollar 
amounts in the range of $300,000 to $350,000, HUD proposes that 
delineation of which entitlement jurisdictions are defined as those 
receiving small CDBG grants should be based on a percentage of the CDBG 
formula appropriation, and HUD proposed such delineation in the FY 2014 
CJ. HUD proposed to establish a minimum grant threshold of 0.0125 
percent of the CDBG formula appropriation amount in order for a 
jurisdiction to receive a direct CDBG entitlement allocation. HUD 
stated that based on the requested funding level of $2.798 billion in 
FY 2014, and jurisdictions that received fiscal year 2012 CDBG 
entitlement allocations, HUD estimated that 239 local governments would 
fall below the 0.0125 percent minimum grant threshold ($348,875). The 
percentage proposed by HUD in the FY 2014 CJ, reaches the same result 
as a dollar threshold, approximately $350,000, but is a better measure 
of a small grant that a strict dollar amount threshold. Accordingly, 
HUD is proposing that entitlement jurisdictions receiving a grant of 
0.0125 of the CDBG formula appropriation or less are designated as 
small CDBG grantees and, similar to qualified PHAs, HUD would delay the 
submission date of the first AFFH by small CDBG grantees.
    Specific solicitation of comment #3: HUD seeks comment on whether 
the proposed percentage of 0.0125 of the CDBG formula appropriation is 
an appropriate threshold to set for entitlement jurisdictions that 
would be provided a later first AFH submission date. HUD welcomes any 
alternative thresholds that would better capture those entitlement 
jurisdictions that have capacity challenges. HUD asks that commenters 
offering alternative thresholds explain the basis for any alternative 
threshold suggested.

III. Solicitation of Comment Only on Delayed Submission of First AFH

    This solicitation of public comment is solely on the specific 
questions pertaining to whether there should be a delayed submission 
date for certain entities as provided in this supplemental notice of 
proposed rulemaking. This notice is not re-opening public comment on 
any other issues related to HUD's July 19, 2013, proposed rule, and HUD 
will not review or consider public comments that address issues other 
than the specific questions in this document directed to delayed 
submission of the first AFH.

    Dated: January 9, 2015.
Camille E. Acevedo,
Associate General Counsel for Legislation and Regulations.
[FR Doc. 2015-00468 Filed 1-14-15; 8:45 am]
BILLING CODE 4210-67-P