[Federal Register Volume 81, Number 242 (Friday, December 16, 2016)]
[Rules and Regulations]
[Pages 90997-91012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30421]


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 DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 91

[Docket No. FR 5891-F-02]
RIN 2506-AC41


Modernizing HUD's Consolidated Planning Process To Narrow the 
Digital Divide and Increase Resilience to Natural Hazards

AGENCY: Office of the Assistant Secretary for Community Planning and 
Development, HUD.

ACTION: Final rule.

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SUMMARY: HUD's Consolidated Plan is a planning mechanism designed to 
help States and local governments to assess their affordable housing 
and community development needs and to make data-driven, place-based 
investment decisions. The Consolidated Planning process serves as the 
framework for a community-wide dialogue to identify housing and 
community development priorities that align and focus funding from 
HUD's formula block grant programs. This rule amends HUD's Consolidated 
Plan regulations to require that jurisdictions consider two additional 
concepts in their planning efforts.
    The first concept is how to address the need for broadband access 
for low- and moderate-income residents in the communities they serve. 
Broadband is the common term used to refer to a high-speed, always-on 
connection to the Internet. Such connection is also referred to as 
high-speed broadband or high-speed Internet. Specifically, the rule 
requires that States and localities that submit a Consolidated Plan 
describe the broadband access in housing occupied by low- and moderate-
income households. If low-income residents in the communities do not 
have such access, States and jurisdictions must consider providing 
broadband access to these residents in their decisions on how to invest 
HUD funds. The second concept added to the Consolidated Plan process 
requires jurisdictions to consider incorporating resilience to natural 
hazard risks, taking care to anticipate how risks will increase due to 
climate change, into development of the plan in order to begin 
addressing impacts of climate change on low- and moderate-income 
residents.

DATES: Effective Date: January 17, 2017.

FOR FURTHER INFORMATION CONTACT: Lora Routt, Senior Advisor, Office of 
Community Planning and Development, Department of Housing and Urban 
Development, Office of Community Planning and Development, 451 7th 
Street SW., Suite 7204, Washington, DC 20410 at 202-402-4492 (this is 
not a toll-free number). Individuals with speech or hearing impairments 
may access this number via TTY by calling the Federal Relay Service at 
800-877-8339 (this is a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of This Rule

    The purpose of this rule is to require States and local governments 
to evaluate the availability of broadband access and the vulnerability 
of housing occupied by low- and moderate income households to natural 
hazard risks, many of which may be increasing due to climate change, in 
their Consolidated Planning efforts. These evaluations are to be 
conducted using readily available data sources developed by Federal 
government agencies, other available data and analyses (including 
State, Tribal, and local hazard mitigation plans that have been 
approved by the Federal Emergency Management Agency (FEMA)), and data 
that State and local government grantees may have available to them. 
Where access to broadband Internet service is not currently available 
or is minimally available (such as in certain rural areas), States and 
local governments must consider ways to bring broadband Internet access 
to low- and moderate-income residents, including how HUD funds could be 
used to narrow the digital divide for these residents. Further, where 
low- and moderate-income communities are at risk of natural hazards, 
including those that are expected to increase due to climate change, 
States and local governments must consider ways to incorporate 
appropriate hazard mitigation and resilience into their community 
planning and development goals, codes, and standards, including the use 
of HUD funds to accomplish these objectives. These two planning 
considerations reflect emerging needs of communities in this changing 
world. Broadband provides access to a wide range of resources, 
services, and products, which assist not only individuals and, but also 
communities, in their efforts to improve their economic outlooks. 
Analysis of natural hazards, including the anticipated effects of 
climate change on those hazards, is important to help ensure that 
jurisdictions are aware of existing and developing vulnerabilities in 
the geographic areas that they serve that can threaten the health and 
safety of the populations they serve.

[[Page 90998]]

B. Summary of Major Provisions of This Rule

    HUD's currently codified Consolidated Plan regulations require that 
local governments and States consult public and private agencies that 
provide assisted housing, health services, and social and fair housing 
services during preparation of the Consolidated Plan. Under these 
regulations, local governments and States are also required in their 
citizen participation plan to encourage the participation of local and 
regional institutions and businesses in the process of developing and 
implementing their Consolidated Plans. This rule requires States and 
local governments, in preparing their Consolidated Plan, to add to the 
list of public and private agencies and entities that they now must 
consult with for preparation of their plans, to consult with public and 
private organizations, including broadband internet service providers, 
organizations engaged in narrowing the digital divide (e.g., schools, 
digital literacy organizations), and agencies whose primary 
responsibilities include the management of flood prone areas, public 
land or water resources, and emergency management agencies (see 
Sec. Sec.  91.100 and 91.110). Jurisdictions must also encourage the 
participation of these entities in implementing relevant components of 
the plan (see Sec. Sec.  91.105 and 91.115).
    The rule also requires each jurisdiction to describe broadband 
needs in housing occupied by low- and moderate-income households based 
on an analysis of data for its low- and moderate-income neighborhoods 
for which the source is cited in the jurisdiction's Consolidated Plan. 
These needs include the need for broadband wiring and for connection to 
the broadband service in the household units, and the need for 
increased competition by having more than one broadband Internet 
service provider serve the jurisdiction (see Sec. Sec.  91.210 and 
91.310). Possible sources of such data include the National Broadband 
Mapcreated by the National Telecommunications and Information 
Administration (NTIA) of the Department of Commerce. Grantees may also 
find broadband availability data in Federal Communications Commission 
(FCC) Form 477. As discussed later in this preamble, the regulatory 
text does not include recommended sources of data to avoid any 
confusion that these are not required sources, only recommended 
sources.
    The rule also requires that jurisdictions provide, as part of their 
required housing market analysis, an assessment of natural hazard risks 
to low- and moderate-income residents, including risks expected to 
increase due to climate change, based on an analysis of data, findings, 
and methods identified by the jurisdiction, for which a reputable 
source is cited in the jurisdiction's Consolidated Plan. Possible 
sources of such data include: (1) The most recent National Climate 
Assessment, (2) the Climate Resilience Toolkit, (3) the Community 
Resilience Planning Guide for Buildings and Infrastructure Systems 
prepared by the National Institute of Standards and Technology (NIST), 
and, (4) other climate risk-related data published by the Federal 
government or other State or local government climate risk related 
data, including FEMA-approved hazard mitigation plans which incorporate 
climate change data or analysis. For the same reasons discussed above, 
the regulatory text related to natural hazard risk analysis does not 
include the recommended sources of data. Prior to implementation of the 
new requirements established by this rule, HUD will provide additional 
resources to support grantees in the form of guides and trainings. 
Grantees may also request Technical Assistance through their HUD Field 
Office or directly at www.HUDExchange.info/get-assistance.

C. Costs and Benefits of This Rule

    HUD's Consolidated Plan process, established by regulation in 1995, 
provides a comprehensive planning process for HUD programs administered 
by HUD's Office of Community Planning and Development, specifically the 
Community Development Block Grant (CDBG) program, the HOME Investment 
Partnerships (HOME) program, the Emergency Solutions Grants (ESG) 
program and the Housing with Opportunities for Persons With AIDS 
(HOPWA) program. Comprehensive community planning provides officials 
with an informative profile of their communities in terms of 
population, housing, economic base, community facilities, and 
transportation systems, and such information aids officials in their 
investment decisions. HUD's Consolidated Planning process assists State 
and local officials that are recipients of HUD funds under the above-
listed programs in determining the housing and community development 
needs of their respective communities. Requiring Consolidated Plan 
jurisdictions to consider the broadband and natural hazard resilience 
needs of their communities helps to ensure a more complete profile of 
the needs of their communities. As discussed in this preamble, the 
importance of providing broadband access to all cannot be overstated. 
Broadband access is not only important for increasing opportunities for 
individuals' success, but also for the success of a community. 
Consideration of the impact of natural hazard risks, many of which are 
anticipated to increase due to climate change, in one's community, and 
how communities can help mitigate any such adverse impacts, is equally 
important as it will help to guide the best use of land and orderly and 
sustainable growth. In brief, the benefits of this rule are to promote 
a balanced planning process that more fully considers the housing, 
environmental, and economic needs of communities.
    The costs of the revised consultation and reporting requirements 
are not significant since the regulatory changes proposed by this rule 
merely build upon similar existing requirements for other elements 
covered by the Consolidated Planning process rather than mandating 
completely new procedures. Further, the required assessments are based 
on data readily available on the Internet, or which the Consolidated 
Plan jurisdiction may already have available to it, such as its own 
local data. Therefore, jurisdictions will not have to incur the expense 
and administrative burdens associated with collecting data. HUD 
anticipates providing grantees with data early in Federal Fiscal Year 
2018. HUD will not require grantees to incorporate these new 
requirements into their Consolidated Plan process until HUD is able to 
make the data available to all grantees. To provide such time, the 
regulatory text provides that the new requirements apply to 
Consolidated Plans submitted on or after January 1, 2018.
    Moreover, this rule does not mandate that actions be taken to 
address broadband needs or climate change adaptation needs. HUD's 
Consolidated Plan process has long provided that jurisdictions are in 
the best position to decide how to expend their HUD funds. The 
additional analyses required by this rule may highlight areas where 
expenditure of funds would assist in opening up economic opportunities 
through increased broadband access or mitigate the impact of possible 
natural hazards, including those that may be exacerbated due to climate 
change. But HUD leaves it to jurisdictions to consider any appropriate 
methods to promote broadband access or protect against the adverse 
impacts of climate change, taking into account the other

[[Page 90999]]

needs of their communities, and available funding, as identified 
through the Consolidated Planning process.

II. Background

A. Broadband Access

    On March 23, 2015, President Obama issued a Presidential Memorandum 
on ``Expanding Broadband Deployment and Adoption by Addressing 
Regulatory Barriers and Encouraging Investment and Training.'' In this 
memorandum, the President noted that access to high-speed broadband is 
no longer a luxury, but a necessity for American families, businesses, 
and consumers. The President further noted that the Federal government 
has an important role to play in developing coordinated policies to 
promote broadband deployment and adoption, including promoting best 
practices, breaking down regulatory barriers, and encouraging further 
investment.
    On July 15, 2015, HUD launched its Digital Opportunity 
Demonstration, known as ``ConnectHome,'' in which HUD provided a 
platform for collaboration among local governments, public housing 
agencies, Internet service providers, philanthropic foundations, 
nonprofit organizations and other relevant stakeholders to work 
together to produce local solutions for narrowing the digital divide in 
communities across the nation served by HUD. The demonstration, or 
pilot as it is also called, commenced with the participation of 28 
communities. Through contributions made by the Internet service 
providers and other organizations participating in the pilot, these 28 
communities will benefit from the ConnectHome collaboration by 
receiving, for the residents living in HUD public and assisted housing 
in these communities, broadband infrastructure, technical assistance, 
literacy training, and electronic devices that provide for accessing 
high-speed Internet.
    The importance of all Americans having access to the Internet 
cannot be overstated. As HUD stated in its announcement of the Digital 
Opportunity Demonstration, published in the Federal Register on April 
3, 2015, at 80 FR 18248, ``[k]nowledge is a pillar to achieving the 
American Dream--a catalyst for upward mobility as well as an investment 
that ensures each generation is as successful as the last.'' \1\ Many 
low-income Americans do not have broadband Internet at home, 
contributing to the estimated 66 million Americans who are without the 
most basic digital literacy skills. Without broadband access and 
connectivity and the skills to use Internet technology at home, 
children will miss out on the high-value educational, economic, and 
social impact that high-speed Internet provides. It is for these 
reasons that HUD is exploring ways, beyond ConnectHome, to narrow the 
digital divide for the low-income individuals and families served by 
HUD multifamily rental housing programs. This rule presents one such 
additional effort.
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    \1\ See 80 FR 18248, at 18249.
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B. Natural Hazards Resilience

    On November 1, 2013, President Obama signed Executive Order 13653, 
on ``Preparing the United States for the Impacts of Climate 
Change.''[thinsp]Executive Order 13653 was subsequently published in 
the Federal Register on November 6, 2013 (78 FR 66819). The Executive 
Order recognizes that the potential impacts of climate change--
including an increase in prolonged periods of excessively high 
temperatures, more heavy precipitation, an increase in wildfires, more 
severe droughts, permafrost thawing, ocean acidification, and sea-level 
rise--are often most significant for communities that already face 
economic or health-related challenges. Research has bolstered the 
understanding of the concept of social vulnerability, which describes 
characteristics (age, gender, socioeconomic status, special needs, 
race, and ethnicity) of populations that influence their capacity to 
prepare for, respond to, and recover from hazards and disasters, 
including the sensitivity of a population to climate change impacts and 
how different people or groups are more or less vulnerable to those 
impacts. Social vulnerability and equity in the context of climate 
change are important because some populations may have less capacity to 
prepare for, respond to, and recover from climate-related hazards and 
effects. Executive Order 13653 asserts that managing these risks 
requires deliberate preparation, close cooperation, and coordinated 
planning by the Federal government, State, Tribal, and local 
governments, and stakeholders. Further, the Executive Order calls upon 
Federal agencies to identify opportunities to support and encourage 
smarter, more climate-resilient investments by States, local 
communities, and tribes, through grants and other programs, in the 
context of infrastructure development.
    Section 7 of Executive Order 13653 established the President's 
State, Local, and Tribal Leaders Task Force on Climate Change 
Resilience and Preparedness (Task Force). Co-chaired by the Chair of 
the White House Council on Environmental Quality and the Director of 
the White House Office of Intergovernmental Affairs, the Task Force 
consisted of 26 governors, mayors, county officials, and Tribal leaders 
from across the United States. Members brought first-hand experiences 
in building climate preparedness and resilience in their communities 
and conducted broad outreach to thousands of government agencies, trade 
associations, planning agencies, academic institutions, and other 
stakeholders, to inform their recommendations to the Administration.
    The President charged the Task Force with providing recommendations 
on how the Federal government can respond to the needs of communities 
nationwide that are dealing with the impacts of climate change by 
removing barriers to resilient investments, modernizing Federal grant 
and loan programs to better support local efforts, and developing the 
information and tools they need to prepare, among other measures. In 
November 2014, Task Force members presented their recommendations for 
the President at a White House meeting with Vice President Biden and 
other senior Administration officials. Among other actions, the Task 
Force called on HUD to consider strategies within existing grant 
programs to facilitate and encourage integrated hazard mitigation 
approaches that address climate-change related risks, land use, 
development codes and standards, and capital improvement planning. This 
final rule represents one step that HUD is taking to implement these 
recommendations.
HUD's May 2016 Proposed Rule
    On May 18, 2016, at 81 FR 31192, HUD published a proposed rule that 
would require Consolidated Plan jurisdictions to consider broadband 
Internet access and the natural hazard resilience needs of their 
communities and to consider whether they should and can take actions to 
address these needs.
    HUD's Consolidated Planning process serves as the framework for a 
community-wide dialogue to identify housing and community development 
priorities that align and focus funding from the HUD formula block 
grant programs: The CDBG program, the HOME program, the ESG program, 
and the HOPWA program. HUD's regulations for the Consolidated Plan are 
codified at 24 CFR part 91 (entitled ``Consolidated Submissions for 
Community Planning and Development Programs''). A Consolidated Plan, 
which may have a planning duration of

[[Page 91000]]

between 3 and 5 years, is designed to help States and local governments 
to assess their affordable housing and community development needs, in 
the context of market conditions at the time of their planning, and to 
make data-driven, place-based decisions on how to expend HUD funds in 
their jurisdictions.
    In developing their Consolidated Plans, States and local 
governments are required to engage their communities, both in the 
process of developing and reviewing the proposed plan, and as partners 
and stakeholders in the implementation of the plan. By consulting and 
collaborating with other public and private entities, States and local 
governments can better align and coordinate community development 
programs with a range of other plans, programs, and resources to 
achieve greater impact. A jurisdiction's Consolidated Plan is carried 
out through annual Action Plans, which provide a concise summary of the 
actions, activities, and the specific Federal and non-federal resources 
that will be used each year to address the priority needs and specific 
goals identified by the Consolidated Plan. States and local governments 
report on accomplishments and progress toward Consolidated Plan goals 
in the Consolidated Annual Performance and Evaluation Report (CAPER).
    The regulatory amendments proposed by HUD's May 2016 rule would 
require States and local governments to consider broadband access and 
natural hazard resilience as part of their Consolidated Planning 
efforts. Where the required analysis demonstrates that broadband 
Internet support is not currently available or is minimally available, 
or the jurisdiction's community is at risk of natural hazards, the 
jurisdiction should consider ways of addressing those needs.
    The public comment period for HUD's May 18, 2016, proposed rule 
closed on July 18, 2016. HUD received 37 public comments on the 
proposed rule. The commenters included State and local governments, 
climate adaptation and environment organizations, public housing 
agencies (PHAs) and nonprofit organizations. The following Section III 
discusses the significant comments raised by the commenters and HUD's 
responses to the comments.

III. Discussion of Public Comments Received on the May 16, 2016, 
Proposed Rule

    This section of the preamble presents a summary of the significant 
issues and questions raised by the commenters and HUD's responses to 
these comments. The majority of the commenters supported the inclusion 
of both assessments in the Consolidated Planning process, but as shown 
below in the discussion of public comments were concerned about 
administrative burden. In responding to the comments, HUD has strived 
to highlight that the burden is minimal. The only change that HUD makes 
in responses to public comments, as is more fully discussed below, is 
to remove from the regulatory text specific recommended broadband and 
risk hazard sources to consult in making the required assessments. 
There was confusion about whether or when consultation with these 
sources was required. They are recommended, not required sources. 
Removing these references from the regulatory text eliminates this 
confusion.

A. General Comments

    Comment: Support for the rule. The majority of commenters supported 
the proposed rule. These commenters commended HUD on recognizing the 
importance of requiring jurisdictions to assess broadband access for 
low-and moderate-income households and to consider how to incorporate 
resilience to natural hazard risks in their planning efforts.
    HUD Response. HUD appreciates the support of the commenters and 
agrees that these changes to the Consolidated Planning process should 
aid jurisdictions in addressing two emerging needs of communities in 
this changing world.
    Comment: The rule is an unfunded mandate. Several commenters stated 
that the proposed rule represented an overreach of HUD's authority and 
that the changes were an unfunded mandate.
    HUD Response. The commenters are not correct that the two new 
assessments impose an unfunded mandate. As an initial matter, HUD notes 
that the rule's scope is limited to requiring consideration of the 
broadband and natural hazards resilience needs of low-income 
communities. The rule does not mandate that any actions be taken in 
response to the required assessments. Jurisdictions retain the 
discretion to consider the most appropriate methods to address their 
assessments, taking into account other needs identified as part of the 
Consolidated Planning process as well as financial and other resource 
constraints. Further, HUD notes that the Consolidated Planning process 
is required only to the extent jurisdictions voluntarily seek to 
participate in HUD's community planning and development programs. 
Accordingly, there is no mandate for jurisdictions choosing not to 
receive such funding. The concept of unfunded mandates excludes 
voluntarily-assumed requirements imposed as a condition for receipt of 
Federal assistance.
    Comment: The proposed regulatory changes are administratively and 
economically burdensome. Several commenters wrote that the proposed 
rule imposes an administrative burden, especially on smaller 
communities. The commenters wrote that the financial burden would 
unduly stretch already limited CDBG and HOME program funding. The 
commenters also objected that HUD underestimated the administrative 
burden of complying with the new requirements. Some of these commenters 
focused on the administrative burden associated with the expanded 
consultation requirements, which now include broadband internet service 
providers, organizations engaged in narrowing the digital divide, and 
agencies engaged in resilience planning. These commenters stated that 
HUD's estimates of the administrative burden failed to account for the 
person-hours required to locate, engage, evaluate, and compile 
recommendations from qualified public and private entities within 
either content area. The commenters wrote that HUD should refrain from 
pursuing the changes or make the two new assessments optional.
    HUD Response. As noted in the proposed rule, HUD has sought to 
minimize the costs and burdens imposed on communities by allowing the 
assessments to be completed using readily available online data 
sources. HUD further minimizes the burden imposed on jurisdictions by 
providing an electronic template for completing the Consolidated Plan. 
This template, first used in 2012, provides a uniform and flexible 
template that helps ensure the Consolidated Plan is complete per the 
regulations found in 24 CFR part 91. Many of the data tables within the 
Consolidated Plan template are pre-populated with the most up-to-date 
housing and economic data available, and HUD plans to input data for 
both broadband and resilience assessment requirements. While grantees 
will need to provide explanations relating their funding priorities to 
the pre-populated data, they do not need to incur the costs or time of 
searching for, entering, and compiling the data. HUD also notes that 
the rule does not require jurisdictions to use the pre-populated data; 
jurisdictions may opt to use other data of their choice.
    HUD anticipates providing grantees with data early in Federal 
Fiscal Year 2018. HUD will not require grantees to

[[Page 91001]]

incorporate these new requirements into their Consolidated Plan process 
until HUD is able to make the data available to all grantees. To 
provide such time, the regulatory text provides that the new 
requirements apply to Consolidated Plans submitted on or after January 
1, 2018.
    With respect to the consultation requirements, HUD notes the 
Consolidated Plan has always served as a planning document for the 
jurisdiction as a whole. Jurisdictions are already required to consult 
with public and private agencies, business and civic leaders, and units 
of local government. The inclusion of the newly specified entities does 
not substantively alter the cost or administration of the already 
required participatory process.
    Comment: The new proposed rule lacks necessary specificity of how 
the two new assessments are to be conducted. Several commenters wrote 
that the proposed rule lacked sufficient specificity regarding the 
required contents of the new assessments and the criteria HUD will use 
to evaluate the adequacy of the assessment. The commenters wrote that 
this lack of details would make it difficult for jurisdictions to 
comply with the new requirements. One of the commenters asked whether 
the data sources cited by the community would be subject to review by 
HUD. The commenters urged HUD to provide additional guidance to 
communities on how it plans to measure compliance with the rule.
    HUD Response: As it does on other components of the Consolidated 
Plan, HUD will provide technical assistance and training materials to 
assist jurisdictions in meeting the new requirements. However, HUD 
notes that the requirements of the new rule are not entirely 
unfamiliar, as the Consolidated Planning process already requires 
jurisdictions to identify non-housing community development needs that 
would aid communities in developing viable urban communities, providing 
a suitable living environment and expanding economic opportunities 
principally for low-income and moderate-income persons. (See 24 CFR 
91.215(f).) With respect to data, as noted in response to an earlier 
comment, HUD plans to pre-populate data in the electronic Consolidated 
Plan template. Through the standardized template with prepopulated data 
tables at the jurisdictional level and providing the ability to map 
community needs, jurisdictions will be able to ascertain and satisfy 
HUD's needs assessment expectations. To ensure that jurisdictions have 
engaged in analysis regarding community broadband and natural hazard 
resilience needs, plans will be reviewed for compliance with the new 
requirements. Guidance will be developed for the field staff to support 
consistent implementation of this policy. In order to aid grantees, HUD 
will provide in its guidance best practices and examples for 
incorporating broadband and natural hazards into the Consolidated Plan.
    Comment: HUD should first establish eligible activities for the two 
new assessments, before requiring that such assessments be undertaken. 
A commenter wrote that the two new assessments do not directly address 
CDBG's objectives. The commenter stated that before any changes are 
made to the consultation and citizen participation regulations, HUD 
should update the eligible activities and guidance regarding these 
kinds of activities. The commenter stated that, for instance, income 
payments, including payments for utilities such as Internet, are not 
considered an eligible CDBG activity. The commenter stated that CDBG 
funding could be used to make utility payments, including Internet 
payments, to ensure low- and moderate-income families have access to 
the Internet. Another commenter asked whether CDBG funds can be used to 
assist in broadband infrastructure or otherwise connect housing 
assisted by HUD to broadband.
    HUD Response: One of the statutory objectives of the CDBG program 
is to ``provid[e] . . . [a] suitable living environment,'' which 
encompasses a range of related goals and activities such as improving 
the safety and livability of neighborhoods; increasing access to 
quality public and private facilities and services; and reducing the 
isolation of income groups within a community or geographical area 
through the spatial deconcentration of housing opportunities for 
persons of lower income, the revitalization of deteriorating or 
deteriorated neighborhoods, and the conservation of energy resources. 
The two new assessments required under this rule align with this 
objective. With respect to eligible activities, while HUD does not have 
regulatory authority to add new eligible activities to the CDBG program 
beyond those authorized in statute, the CDBG program already includes 
numerous eligible activities, such as rehabilitation, through which 
grantees can assist broadband connectivity and natural hazard 
resilience efforts directly. When determining their public facility, 
housing rehabilitation, economic development, and infrastructure needs, 
grantees may wish to consider high performing infrastructure to 
ameliorate/withstand natural hazards, as well as ways to use eligible 
activities to meet community broadband needs. HUD has provided guidance 
on using existing eligible activities for these purposes,\2\ and will 
also be providing additional technical assistance and guidance on how 
CDBG funds may be used to address both broadband and resilience needs 
in the community.
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    \2\ Please see the Frequently Asked Questions (FAQs) for the 
CDBG, HOME, and Housing Trust Fund programs available at the 
following links: https://www.hudexchange.info/resource/4891/cdbg-broadband-infrastructure-faqs/ https://www.hudexchange.info/onecpd/assets/File/HOME-FAQs-Broadband.pdf https://www.hudexchange.info/resource/4420/htf-faqs/.
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    Comment: HUD's regulations should be generally stated and guidance 
should provide the necessary specificity. A commenter wrote that as 
proposed, HUD requires very specific data sources to be included in the 
Consolidated Plan. The commenter stated that this is problematic 
because data sources often change or are renamed. The commenter stated 
that HUD's regulations should list general information that is required 
in the Consolidated Plan while HUD guidance and other materials that 
are regularly updated, such as the ``Consolidated Plan in IDIS Desk 
Guide,'' should provide recommended data sources. The commenter stated 
that this will allow HUD to update data sources easily in circumstances 
where sources change or new sources become available.
    HUD Response: HUD appreciates the suggestion made by the commenter, 
and has revised the rule accordingly. As recommended, the regulation no 
longer identifies specific recommended sources. These suggested sources 
of data will now be listed in guidance to facilitate updating as new 
data becomes available or data sources are re-named. Jurisdictions will 
still be able to use either the data identified by HUD and pre-
populated in the electronic Consolidated Plan template or other data 
sources of the jurisdiction's choice, for which the source is cited in 
the jurisdiction's Consolidated Plan.
    Comment: The rule includes no mandate thereby providing no 
assurance goals will be met. A commenter wrote that despite HUD's 
recognition of the importance of access to broadband and the increasing 
risk of natural hazards, the proposed rule does not mandate 
jurisdictions take any action, or even formulate actions steps, to 
address these needs. The commenter wrote that while is it is often true 
that ``jurisdictions are in the best position to decide how to expend 
their HUD funds,'' requiring concrete plans of

[[Page 91002]]

action instead of just data collection is the only real way to ensure 
HUD's stated goals are met.
    HUD Response: A fundamental principle of the Consolidated Planning 
process, as well as of HUD's community development formula programs 
(for which the Consolidated Plan is the submission vehicle) is that 
grantees have the flexibility and responsibility for developing their 
own programs and funding priorities, based on their own assessment of 
their needs. HUD does not mandate what objectives grantees should 
achieve or what activities grantees are to undertake with their formula 
funding. It will be up to the jurisdiction through its needs assessment 
process to determine whether to select activities related to these 
issues as a priority need. The grantee would identify the financial and 
organizational resources available to address its priority needs. In 
the Consolidated Planning process, the level of resources available 
will play a key role in determining strategies and goals. Once 
broadband or increasing resilience have been selected as a priority 
need, grantees would then develop a set of goals based on the 
availability of resources, and local organizational capacity.
    Comment: The new assessments are already made by agencies within 
each State tasked with such assessments. A commenter stated that new 
assessments should not be required of State housing agencies. The 
commenter stated that these assessments are already made by those State 
agencies charged with technology authority or charged with emergency 
management. The commenter stated that generally, for each State, these 
assessments are made through programs that are not part of the 
Consolidated Planning process.
    HUD Response: HUD agrees that jurisdictions often already have 
assessments undertaken by other agencies regarding both broadband 
access and natural hazard resiliency. HUD is encouraging through its 
Consolidated Planning process a collaborative consultation process. HUD 
also encourages jurisdictions to use these plans developed by other 
agencies in identifying community needs and priorities. The 
Consolidated Planning process provides the opportunity for 
jurisdictions to reference existing plans and HUD is not requiring a 
separate, distinct study to be undertaken. It is up to each 
jurisdiction to determine which agencies or departments will be 
responsible for developing its Consolidated Plan and for administering 
the HUD community development formula funding received through each 
block grant program. All other jurisdictions (including States) are 
encouraged to ensure collaboration among internal and external agencies 
and staff to take full advantage of relevant expertise. Ideally, State 
agencies would develop these plans in alignment with each other, not 
only to reduce duplication of work but also to ensure that Federal 
investments are more aligned throughout the State and in their 
communities.
    Comment: Consider requiring assessments for broadband adoption and 
increasing resilience to natural hazards beyond the context of housing 
needs. Several commenters wrote that HUD should consider requiring 
assessments in Consolidated Plans beyond just housing needs. The 
commenter stated that even though Consolidated Plans are focused on 
housing needs, communities would benefit if jurisdictions are required 
to at least analyze how funds could be used for broadband adoption and 
enhancing resilience to natural hazard risks for communities as a 
whole.
    HUD Response: The Consolidated Plan is not exclusively concerned 
with housing needs. HUD's Consolidated Plan regulations include both a 
housing needs assessment and a non-housing community development plan. 
Specifically, under 24 CFR 91.215 (for local governments) and 24 CFR 
92.315 (for States), jurisdictions must provide a description of 
priority non-housing community development needs eligible for 
assistance under HUD's community development programs. In line with the 
goals of this rulemaking, HUD strongly encourages jurisdictions to 
consider implementing actions to support broadband access and adoption 
and increase resilience in their non-housing community development 
efforts, but such decisions on priorities are determined by grantees.
    Comment: These two new Consolidated Plan assessments require input 
by the residents of the community. A commenter stated that assessing 
broadband and natural hazards concerns of the community beyond the data 
points and institutional input required in the proposed rule is 
essential for local governments and States in assessing the true needs 
of the community. The commenter stated that without direct 
communication with the households that are affected by these issues, 
States and localities cannot properly assess the full needs of the 
communities they serve. The commenter urged HUD to require 
jurisdictions to create a public process where members of the community 
have opportunity to comment on Consolidated Plans, and that HUD should 
consider a community participation structure similar to the requirement 
under HUD's Affirmatively Furthering Fair Housing (AFFH) regulation.
    HUD Response: HUD's Consolidated Plan regulations already require 
jurisdictions to undertake a citizen participation and consultation 
process (see, subpart B of the Consolidated Plan regulations at 24 CFR 
part 91, entitled ``Citizen Participation and Consultation''). The AFFH 
citizen participation process was modeled on the citizen participation 
and consultation process required by HUD's Consolidated Plan 
regulations. HUD does not believe that a separate citizen participation 
and consultation process is required for the two new assessments 
established by this rule, as was established under the AFFH rule. HUD's 
AFFH rule implemented a requirement, affirmatively furthering fair 
housing, under a separate statute, the Fair Housing Act. That is not 
the case here.
    Comment: Broadband access and natural hazard risk resilience should 
be included in the jurisdictions' Assessment of Fair Housing required 
by HUD's Affirmatively Furthering Fair Housing regulation. A commenter 
wrote that in addition to addressing concerns about broadband access 
and resilience to natural hazard risks in their Consolidated Plans, HUD 
should require jurisdictions to incorporate these assessments into 
their Assessment of Fair Housing required under HUD's AFFH rule. The 
commenter stated that HUD's AFFH rule aims to aide States and local 
governments ``in taking a meaningful actions, in addition to combating 
discrimination, that overcome patterns of segregation and foster 
inclusive communities free from barriers that restrict access to 
opportunity based on protected characteristics.'' The commenter stated 
that under the AFFH rule, jurisdictions are charged with taking 
meaningful actions that ``transform racially and ethnically 
concentrated areas of poverty into areas of opportunity.''
    HUD Response: While HUD, in this rule, is not mandating inclusion 
of the broadband access and resilience assessments in the Assessment of 
Fair Housing required under HUD's AFFH rule, jurisdictions may 
voluntarily elect to include them in their assessment required under 
the AFFH rule. As noted, HUD encourages jurisdictions to ensure 
collaboration among State and local agencies and staff to take full 
advantage of relevant expertise among all agencies and employees, be 
they internal or external to the jurisdiction.

[[Page 91003]]

The suggestion made by the commenter may be one possible way of 
achieving that goal.

B. Specific Comments on Narrowing the Digital Divide

    Comment: The National Broadband Map and Form 477 do not provide 
current data and HUD should therefore allow use of State and local 
data. Several commenters objected to use of National Broadband Map and 
Form 477 data to determine broadband availability. A commenter 
questioned the accuracy of data quality and accuracy within the 
broadband services sector. Another commenter wrote that Federally 
collected data on broadband access and adoption is often of 
inconsistent quality, unverified, not released in a timely manner, and 
insufficient for the planning needs of many communities. Commenters 
stated that the National Broadband Map has not been updated or 
maintained and currently shows data from the fall of 2014, and this 
outdated resource could lead to confusion and inaccurate information. A 
commenter requested that HUD, in partnership with the Department of 
Commerce's National Telecommunications and Information Administration 
(NITA), pre-certify broadband coverage data and maps that communities 
could use.
    With respect to the Form 477, commenters wrote that the data has 
not been mapped and is difficult to access. To address these concerns, 
the commenters suggested that HUD allow Consolidated Plans to include 
data on broadband access collected directly through State and local 
broadband efforts. A commenter wrote that currently 37 States still 
have active broadband planning teams with data and resources that are 
likely more up-to-date than current federal data. Another commenter 
wrote that few communities have the ability and knowledge base to 
``consult with . . . broadband internet service providers'' as would be 
required in proposed revisions to the consultation and citizen 
participation requirements. The commenter stated that HUD would need to 
provide substantial levels of policy and practical guidance to enable 
local staff to determine broadband ``needs'' for a specific subset of 
the overall population within each community.
    HUD Response: While HUD does not agree with the commenters' 
objections to use of the National Broadband Map and Form 477, it is 
sympathetic to the general concerns expressed regarding the need to 
ensure that data sources are accurate and up-to-date. As noted in 
response to an earlier comment, this final rule does not codify 
specific recommended data sources. These will now be listed in guidance 
to facilitate updating as new data becomes available or data sources 
are re-named. It was not HUD's intent to mandate use of the National 
Broadband Map or Form 477. While HUD plans to provide pre-populated 
data in the electronic Consolidated Plan template, jurisdictions are 
not required to use such data and may use alternative data. The 
template's default data can be replaced or complemented by other data 
identified by the jurisdiction, for which the source is cited in the 
jurisdiction's Consolidated Plan. Further, HUD is committed to aiding 
jurisdictions with meeting the new requirements contained in this rule, 
and will supplement the rule with guidance as may be needed. As it does 
on other components of the Consolidated Plan, HUD will provide 
technical assistance and training materials to assist jurisdictions in 
meeting these new requirements.
    Comment: The rule offers no suggested sources for States and 
communities to assess the extent to which the need for connection to 
the broadband service in the household units is being met. A commenter 
wrote that the data sources identified in the rule are not adequate to 
permit jurisdictions to assess the extent to which broadband services 
have actually penetrated the market of low-to-moderate income 
households in a given community. This commenter suggested two readily 
available federal sources for actual household connection data which 
should be suggested, but not required, by the rule. In contrast to 
commenters that submitted concerns about the data in the immediately 
preceding comment, the first source recommended by the commenter is 
FCC's Form 477 Census Tract Data on Internet Access Services, which the 
commenter stated provides a summary of reported connections for each 
tract and compares the total to the tract's total Census households. 
The commenter stated that this form, along with the FCC's national 
interactive color-coded map, make it reasonably easy to rank or map a 
state or community's Census tracts by household broadband penetration 
and have an easy first look at their tracts' penetration levels. The 
second source recommended by the commenter is the American Community 
Survey (ACS) data on household computer ownership and Internet access.
    HUD Response: HUD appreciates the suggestions of additional data 
sources that may be useful to jurisdictions in preparing the required 
broadband assessment. HUD notes that the Form 477 is already included 
as a suggested data source. As previously addressed in this preamble, 
jurisdictions may either use the data sources suggested by HUD or other 
data identified by the jurisdiction, for which the source is cited in 
the jurisdiction's Consolidated Plan.
    Comment: Do not ignore other causes of digital exclusion other than 
availability in the housing market analysis. A commenter stated that in 
creating a framework through its Consolidated Plan process for 
community dialogue leading to possible action toward greater digital 
access and inclusion, HUD should recognize that low rates of household 
Internet access among low- and moderate-income residents can be the 
result of many causes other than physical availability of service, 
including the following: Unaffordability of available Internet services 
to low-income residents; a lack of convenient opportunities for 
residents to gain digital literacy skills; a failure to communicate the 
value of available Internet services and tools; and other factors 
specific to communities, such as language, cultural barriers, etc.
    HUD Response: HUD appreciates the concerns raised by the commenter. 
The Consolidated Plan contains both a housing need assessment and a 
non-housing community plan development component. HUD encourages 
jurisdictions to look at their broadband and resiliency needs across 
all components of the Consolidated Planning process. The jurisdiction 
has the ability to include an infrastructure assessment as well as 
public services assessment as part of its non-housing community 
development plan. HUD is cognizant that the adoption of broadband 
internet is an equally critical component of closing the digital divide 
and is contingent on many factors other than the availability of 
internet service. This rule, however, is but one part of HUD's broader 
efforts to expand the access and use of broadband internet. HUD also 
notes that the jurisdictions are free to expand their broadband 
assessment to include the types of issues listed by the commenter, 
based on their identification of local needs and circumstances.
    Comment: Consultation requirements should include other identified 
stakeholders. Several commenters expressed support for the proposed 
rule requiring the consultation of broadband stakeholders in 
preparation for creating Consolidated Plans. The commenters suggested 
additional stakeholders that should be included in the consultation

[[Page 91004]]

process. One commenter specifically recommended that State planning 
programs be identified as possible partners in the locations they are 
available. Another commenter suggested that HUD clarify that public-
private initiatives or partnerships (like a local community technology 
planning team or task force, which might not have a formal legal 
identity or corporate status) will qualify as an ``organization engaged 
in narrowing the digital divide.'' The commenter stated that the needs 
of often-voiceless, low-income communities with low adoption rates will 
not always register with broadband providers, but allowing these 
public-private organizations to voice the needs of low-income 
communities can help establish a business case for improved service 
offerings and options. Yet another commenter suggested adding language 
to include ``local social service and public agencies providing digital 
literacy, public internet access, or other broadband adoption 
programs.'' The commenter stated that these may include, but are not 
limited to: Adult literacy and education providers; K-20 schools; youth 
program providers; libraries; and small business and workforce training 
program providers.
    HUD Response: The purpose of the Consolidated Planning process is 
to aid jurisdictions, as a whole, in identifying their housing and 
community development needs and funding priorities. The Consolidated 
Plan builds on a participatory process that includes citizens, 
organizations, businesses, and other stakeholders. In carrying out 
these already required consultations, HUD encourages jurisdictions to 
conduct the broadest possible outreach, including State and local 
agencies and other entities identified by the commenters.
    Comment: Require grantees to submit progress reports in closing the 
digital divide. A commenter recommended that HUD revise the language at 
the final rule stage to state that after submission and acceptance of 
the Consolidated Plan, communities are expected to develop a reasonable 
and achievable strategy for closing the digital divide. The commenter 
stated that this language should leave no doubt as to the expectation 
that progress will begin immediately. The commenter stated that HUD 
should mandate that communities provide regular progress reports as 
they take their first steps into closing the digital divide.
    HUD Response: Grantees are currently required to submit progress 
reports on the priority needs and goals they select during the 
Consolidated Planning process. Under HUD's Consolidated Plan 
regulations, within 90 days after the end of its program year, a 
grantee must submit a Consolidated Annual Performance and Evaluation 
Report (CAPER) to HUD. The primary purpose of the CAPER is to report on 
accomplishments of funded activities within the program year and to 
evaluate the grantee's progress in meeting one-year goals it has 
described in the Annual Action Plan and long-term goals it has 
described in the Consolidated Plan.
    Comment: Encourage jurisdictions to partner with successful 
ConnectHome communities. A commenter stated that to ease and facilitate 
the assessment of broadband needs as part of the Consolidated Planning 
process, HUD should recommend and/or establish connections between 
applicants and successful ConnectHome communities that have developed 
and implemented their own connection plans. The commenter stated that 
this additional resource would dramatically increase the information 
available to each community while further reducing administrative and 
financial costs as communities share best practices. Another commenter 
suggested that HUD document and widely share data and promising 
practices from the 28 ConnectHome pilot communities, and assess what 
strategies have been most (and least) successful in supporting 
broadband access and adoption. The commenter encouraged HUD to 
regularly undertake and make public an analysis of findings from 
broadband access and adoption strategies jurisdictions reported in 
their Consolidated Annual Performance and Evaluation Report or other 
relevant reporting processes. The commenter also requested that HUD 
establish a single-stop data center that contains links to all relevant 
resources.
    HUD Response: HUD agrees that ConnectHome communities could be a 
valuable resource for other jurisdictions. HUD encourages 
collaboration, where possible, between jurisdictions in developing and 
implementing their plans to expand access to broadband internet. As the 
commenter notes, such collaboration can be a cost-effective way to 
share successful strategies and best practices. HUD will seek ways to 
facilitate sharing of best practices of the ConnectHome communities. 
For example, HUD is developing playbook that provides suggestions and 
best practices for communities seeking to expand digital inclusion. The 
suggestions identified in the playbook are based on HUD's experience 
and expertise developed during implementation of the ConnectHome 
initiative.
    Comment: Examine how HUD programs may limit the ability of grantees 
to invest funds in broadband access and adoption. A commenter suggested 
that HUD assess how existing rules and legislation governing HUD 
programs may limit the ability of grantee governments to invest funds 
in broadband access and adoption. The commenter offered as an example 
of such limitation the ``public services cap'' on grantees' permissible 
use of CDGB grant funds. The commenter stated that any local investment 
of CDBG funds in digital literacy training, technical assistance or 
even consumer premises equipment to support household internet adoption 
is currently classified as a public service expenditure and limited by 
the cap, which means it competes for a fixed pool of dollars with all 
kinds of ongoing community needs such as emergency homeless shelters.
    HUD Response: As with all its programs and initiatives, HUD will, 
on an ongoing basis, review and assess the impact of legislative and 
regulatory requirements on program participants. Where appropriate or 
necessary to policy goals, HUD will seek changes through the 
appropriate vehicle, rulemaking, legislation or other policy action 
that may facilitate a change. However, HUD does not agree with the 
commenter that the CDBG program unduly limits activities to expand 
access and adoption of broadband internet. The CDBG regulations allow 
the use of grant funds for a wide range of eligible activities 
including public services, which is not the only activity a community 
can use to address its broadband needs. Grantees have the flexibility 
and responsibility for developing their own programs and funding 
priorities, based on their own assessment of their needs. Additionally, 
other funding associated with the Consolidated Plan, such as HOME and 
Housing Trust Fund funds, may be used for the actual costs of 
constructing or rehabilitating single family or multifamily housing, 
including the costs to wire the property for broadband internet, which 
could help address a community's broadband needs.

C. Specific Comments on Increasing Resilience to Natural Hazards

    Comment: Include a definition of resilience. A commenter stated 
that resilience is a term that means many things to many people. The 
commenter recommended that a definition of resiliency be included in 
HUD's regulations in 24 CFR part 91.
    HUD Response: HUD will provide technical assistance and training

[[Page 91005]]

materials to assist jurisdictions in meeting the new requirements. This 
will include guidance to communities on how to assess their resilience 
to natural hazard risk. As a guide, HUD points to the definition of the 
term ``resilience'' used by HUD for the National Disaster Resilience 
Competition, which is already familiar to HUD grantees and communities 
participating in HUD programs. Specifically, in that notice of funding 
availability, HUD defined resilience to mean ``the ability to 
anticipate, prepare for, and adapt to changing conditions and 
withstand, respond to, and recover rapidly from disruptions.''
    Comment: For consistent evaluation of resilience, HUD should work 
with other Federal agencies to develop guidance and tools that support 
communities and practitioners. A commenter encouraged HUD to work with 
other Federal agencies to develop guidance and tools that support 
communities and practitioners, and noted that several tools already 
exist and were identified in the proposed rule. The commenter 
specifically noted as helpful tools the Integrated Rapid Visual 
Screening (IRVS) Tool, the Community Resilience Planning Guide, and 
Hazus MH FEMA. The commenter stated that to the extent practical, the 
resilience evaluations required within the Consolidated Plan should 
mirror requirements contained in other hazard identification and 
mitigation plans conducted at the State and local level. The commenter 
stated that this should include at a minimum the State Hazard 
Mitigation Plan required to receive certain funding from the Federal 
Emergency Management Agency (FEMA), the Threat and Hazard 
Identification and Risk Assessment (THIRA) process, and planning and 
assessment requirements associated with Department of Transportation, 
Economic Development Administration and other Federal programs. The 
commenter also stated that the rule should require consultation with 
additional community resources such as geological and meteorological 
agencies, energy and sustainability offices, and building code 
departments. Another commenter urged HUD to include academic 
institutions as resources that should be consulted. Yet another 
commenter stated that in addition to supporting communities' access to 
critical governmental resources for assessing resilience to natural 
hazards, HUD should convene a group of expert stakeholders from the 
non-governmental organization community to strategize how to implement 
effective resilience tactics, as well as hosting a broader 
clearinghouse of readily available online data sources--including those 
available in the private sector and nongovernmental organizations--to 
achieve resilience solutions.
    HUD Response: HUD notes that the final rule already provides 
jurisdictions with the flexibility to consult with community resources 
such as those identified by the commenter. HUD also strongly encourages 
jurisdictions to leverage and integrate existing assessments of climate 
and hazard related risks into their Consolidated Plan analysis where 
the jurisdiction deems appropriate. With regard to the suggestion that 
HUD work with other Federal agencies, HUD notes that it currently works 
with other agencies to develop guidance and tools that support 
communities and practitioners. For example, HUD conferred with various 
Federal agencies in the development of this rule. More recently, HUD 
has worked collaboratively with a group of expert stakeholders from 
non-governmental organizations to strategize about the implementation 
of effective resilience tactics to achieve resilience solutions through 
its National Disaster Resilience Competition (NDRC).
    Comment: Establish minimum investment requirements. A commenter 
stated that while the identification of hazards and opportunities to 
mitigate them is an important step to making communities more 
resilient, once such efforts are institutionalized, the commenter 
expressed hope that HUD will establish requirements that communities 
invest in a minimum level of mitigation before Federal investments are 
made within the community. The commenter stated that such requirements 
will enhance the community and assure limited federal funds are used 
responsibly.
    HUD Response: HUD agrees with the commenter that identification of 
hazards and opportunities to mitigate them is an important first step, 
and appreciates the suggestion for establishing minimum investment 
requirements. However, such a mandate runs contrary to the approach HUD 
has taken with its Consolidated Planning regulations.
    Comment: Expand the organizations with which jurisdictions should 
consult. A commenter stated that the proposed rule is a step in the 
right direction, but that to further this important work, jurisdictions 
should be required to consult not only with the list of proposed 
agencies, but also with a wide range of organizations working on 
adaption to the decline of cheap fossil fuel energy, the depletion of 
fresh water, access to fresh food, complex environmental crises like 
climate change and biodiversity loss, and the issues of social, 
economic and health equity. The commenter stated that such information 
is consistent with HUD's new AFFH Data and Mapping Tool and could be 
included as part of the assessment of fair housing. The commenter 
stated that limiting mandatory consultation to ``agencies whose primary 
responsibilities include the management of flood prone areas, public 
land or water resources, and emergency management agencies'' is too 
narrow for a full evaluation of vulnerability to natural hazards and 
ensuring resilience of low- and moderate-income households.
    The commenter stated that a number of public and private 
organizations not listed in the proposed rule are immersed in 
activities that enhance community resilience. For example, 
organizations promoting home weatherization engage in energy 
conservation, help prepare communities for a decline in cheap energy, 
and contribute to efforts to improve neighborhood conditions; 
organizations that focus on public health are able to provide local 
data and findings on health inequity, such as asthma rates and food 
deserts; and community organizations, colleges/universities, and other 
non-profits are currently looking at and responding to the climate 
crisis. The commenter stated that without casting a broad net, planning 
efforts will be incomplete and continue the ill-suited forms of 
planning for the new realities our communities face. Another commenter 
stated that it was important for HUD grantees to consult with agencies 
responsible for economic development and housing in the private sector. 
The commenter stated that it is important to add this additional 
category because the current HUD proposal seems to only cover agencies 
responsible for ``public land and water resources,'' which would 
exclude the many low- and moderate-income facilities regulated and 
affected by local agencies responsible for economic development and 
housing in the private sector.
    HUD Response: The commenters offer very good suggestions on 
agencies with whom to consult with respect to resilience. However, HUD 
does not mandate consultation with these entities. As already noted in 
this preamble, the approach taken in the Consolidated Plan is for 
jurisdictions to determine their needs, decide which needs to fund, 
conduct outreach to residents in their communities, and consult with 
individuals and agencies that will aid them in good community

[[Page 91006]]

planning. The citizen participation and consultation process provides 
the opportunity for a wide variety of stakeholders to participate the 
in the Consolidated Planning process. As mentioned previously, the 
Consolidated Plan includes a non-housing community development plan 
that provides opportunity for a jurisdiction to assess its neighborhood 
conditions, including economic needs, in its efforts to develop viable 
communities.
    Comment: Natural hazard risks should be assessed by the appropriate 
government agency, not the government's housing and/or economic 
development agency, and be done on a project-level basis. A commenter 
that is a government economic development agency stated that it is not 
the appropriate agency to assess natural hazard risks for low- and 
moderate-income households, and that there are other governmental 
organizations charged with assessing mitigating these risks. The 
commenter stated that it can consult with the governmental agency 
charged with assessing and mitigating risks and seek their input on 
Consolidated Planning, but that it would not be appropriate for the 
economic development agency to have a directive or management role in 
this effort. The commenter also stated it is more impactful for this 
type of review to take place at the project level. Once funded, each 
project goes through an environmental review process. Many hazards are 
assessed, ranging from hazardous waste and radiation to floodplain 
analysis. The commenter stated that if a project site is in the 
floodplain, it must go through a potentially lengthy and burdensome 
process to determine if they can move the project or mitigate the 
impact.
    HUD Response: HUD addressed a similar comment early on in this 
Section of the preamble that requested that HUD not mandate broadband 
or natural hazards risk resilience assessments by a housing and/or 
economic development agency when a State or local government has other 
agencies charged to address these matters. As noted by HUD in response 
to that earlier comment, HUD agrees that jurisdictions often already 
have assessments undertaken by other agencies regarding both broadband 
and resiliency. This final rule directs agencies to existing resources 
to guide them in these two areas. Through its Consolidated Planning 
process, HUD encourages a collaborative consultation process instead of 
duplication of efforts. Given that HUD also encourages jurisdictions to 
use other plans that identify community needs and priorities, the 
Consolidated Planning process provides the opportunity for 
jurisdictions to reference existing plans and is not requiring a 
separate, distinct study to be undertaken. It is up to each State or 
local government to determine which agencies or departments will be 
responsible for developing its Consolidated Plan and for administering 
the different HUD funding covered by HUD's Consolidated Plan 
regulations. All jurisdictions (including States) are certainly 
encouraged to ensure collaboration among internal and external agencies 
and staff to take full advantage of all relevant expertise.
    Comment: The National Climate Assessment and the Climate Resilience 
Toolkit are confusing. A commenter stated that the National Climate 
Assessment and the Climate Resilience Toolkit are very confusing. The 
commenter stated that it was hard to understand how a State could use 
this toolkit in a meaningful way in developing its Consolidated Plan. 
The commenter stated that it shares data from its State's Homeland 
Security and Emergency Management Department in its plans and then 
relies on site-specific environmental reviews once projects are funded. 
The commenter stated that these would seem to be better approaches to 
assessing natural hazard risks to low-and moderate households for 
States. In contrast to this comment, another commenter stated that the 
Climate Resilience Toolkit is useful for screening and planning 
purposes. This commenter also stated that while GIS tools that 
integrate topography, hydrology, and social science are readily 
available on the Internet, these tools are not likely to be commonly 
used by housing programs. The commenter suggested that HUD provide 
technical assistance in the form of webinars and workshops to train 
housing staff on the use of these tools, and stated that training 
programs are readily available through NOAA and EPA.
    Another commenter stated that many of the natural hazard resources 
named in HUD's proposed rule are not data sources, but instead are 
plans and toolkits with already-made strategies [Sec.  91.210(a)(5)(i), 
Sec.  91.210(a)(5)(ii), and Sec.  91.210(a)(5)(iii)]. The commenter 
stated that the housing market analysis section of the Consolidated 
Plan is intended to contain data with analysis that will inform the 
later sections which include strategies and goals. The commenter stated 
that because HUD is regulating the use of plans and strategies in this 
data section of the Consolidated Plan, HUD is taking away the grantee's 
efforts to create place-based strategies based on current data.
    HUD Response: By referring to resources, plans, and toolkits, HUD 
is encouraging jurisdictions to review what's been proposed and 
discussed, and see whether it fits into the Consolidated Planning 
efforts. HUD is developing guidance, resources, and tools to help 
grantees work with these sources. Further, as already noted in this 
section, HUD plans to provide pre-populated data in both CPD Maps and 
the eCon Planning Suite template. Jurisdictions may use alternative 
data in the Consolidated Planning process and are not required to use 
the default data provided by the system. Default data can be replaced 
or complemented by specifying a survey or administrative data source. 
If an alternative source is specified, the jurisdiction will be 
required to identify the source and provide basic information on how 
the data was collected. The jurisdiction also has the option of 
providing notes under each table in which alternate data is used to 
indicate what was changed or why the change was necessary. Because the 
public can view much of the default data in CPD Maps, these notes may 
be useful to avoid confusion during the citizen participation process.
    Comment: Expand approved sources of data to be made available to 
jurisdictions for use, and require use of local data. A commenter 
stated that jurisdictions should be required to both identify and 
include local data when describing vulnerabilities of housing occupied 
by low- and moderate-income households due to increased natural 
hazards. The commenter stated that, for example, local data regarding 
the quality of a jurisdiction's housing stock should be considered in 
the planning process, and similarly, geographic location of the low- 
and moderate-income households (which is available through HUD's AFFH 
Assessment Tool Map) should be addressed in planning with regard to 
vulnerabilities of housing.
    HUD Response: As noted earlier, jurisdictions are already able to 
use alternative data. While HUD plans to prepopulate data in both CPD 
Maps and the eCon Planning Suite template, jurisdictions may use 
alternative data in the Consolidated Planning process and are not 
required to use the default data provided by the system. If an 
alternative source is specified, the jurisdiction will be asked to 
identify the source and provide basic information on how the data was 
collected.
    Comment: Issue guidance on how to undertake the required analysis. 
A commenter strongly encouraged HUD to establish more specific guidance 
for jurisdictions on how to complete the

[[Page 91007]]

required analysis. The commenter stated that such guidance should not 
only include a step-by-step process for assessing community 
vulnerability to climate change and natural hazard risks but also 
should facilitate the identification and incorporation of actions that 
build resilience to these risks in the Consolidated Planning process. 
The commenter stated that developing more detailed guidance also would 
reduce the burden placed on jurisdictions by providing greater clarity 
on how to conduct a robust resiliency analysis, and would enhance 
consistency among and improve confidence in resiliency analyses as well 
as facilitate the review and approval of Consolidated Plans by HUD.
    HUD Response: HUD plans to provide further guidance once the rule 
is implemented, but since the Consolidated Plan is completed through 
the e-Con Planning Suite template, the template provides a uniform and 
flexible template that helps ensure the Consolidated Plan is complete 
per the regulations found in 24 CFR part 91. Each screen in the 
template cites the specific section(s) of the regulations that the 
screen is designed to capture. Each screen includes a combination of 
prepopulated data tables and narrative sections that set a baseline for 
HUD's expectations for the amount of information required. HUD 
anticipates providing this same format for both broadband and 
resilience assessment requirements.
    Comment: Ensure that grantees take steps to reduce the risks of 
natural hazards. A commenter stated that HUD's proposed rule does not 
ensure that grantees will take steps to reduce these risks or 
disparities. The commenter stated that, as written, the proposed rule 
explicitly, ``does not mandate that actions be taken to address . . . 
climate change adaptation needs'' and requires nothing of grantees 
beyond gaining knowledge of climate change risks. The commenter stated 
that HUD's rule should ensure that grantees take reasonable and 
adequate steps to both assess climate change risks and develop and 
incorporate reasonable and effective climate change risk mitigation 
strategies into their Consolidated Plans and project designs. The 
commenter stated that without such strategies, the rule would continue 
to allow HUD to invest in community development projects that may not 
be resilient to the effects of climate change and could put communities 
at risk. This commenter also stated that to ensure some level of 
accountability HUD's final rule should state that if grantees invest 
HUD funds in community development projects that do not include designs 
and/or strategies to reduce identified climate risks, HUD could reduce 
funding to that grantee in the future.
    HUD Response: Through the Consolidated Planning process, 
jurisdictions will continue to have the flexibility to determine their 
own needs and priorities for distributing HUD funds. The rule provides 
for the incorporation of broadband and resilience to natural hazard 
risks into the existing needs assessment and market analysis required 
under the Consolidated Planning process. However, it is up to the 
jurisdiction through its needs assessment process to determine whether 
to select either of these issues as a priority need. The grantee would 
identify the financial and organizational resources available to 
address its priority needs. In the Consolidated Planning process, the 
level of resources available will play a key role in determining 
strategies and goals. Once broadband access or increasing resilience 
have been selected as a priority need, grantees would then develop a 
set of goals based on the availability of resources, and local 
organizational capacity. However, the statutory authority for the 
Consolidated Plan process and the formula funding programs remain the 
same. HUD has no authority to require that grantees carry out certain 
types of activities or to achieve specific objectives.
    Comment: Look at climate risk between disasters, not just risk 
post-disaster. A commenter stated that it is essential that 
jurisdictions look at climate risk between disasters, not just in a 
post-disaster context. The commenter stated that identifying 
vulnerabilities during calmer times gives the jurisdiction the 
opportunity to address those challenges before the next disaster. The 
commenter stated that HUD should be mindful that pre-disaster planning 
is a preferable process, as post-disaster--when communities are in 
crisis--is an incredibly difficult time to be strategic. In response to 
HUD's specific inquiry regarding post-disaster reviews, another 
commenter stated that it strongly believes that jurisdictions should be 
required to conduct reviews and revisions of their resilience analysis 
following any major disaster. The commenter stated that this post-
disaster review would not only enable jurisdictions to determine if the 
disaster introduced new hazard risks, but would also serve an important 
function in forcing jurisdictions to face and reconcile weaknesses and 
oversights within their previous plans.
    HUD Response: HUD agrees that it is important to review needs not 
only in a post-disaster context but also between disasters. The 
inclusion of an assessment of resilience in the Consolidated Plan is 
not intended to apply to the post-disaster context, but rather is 
designed to help all grantees be better prepared if a disaster were to 
occur in the future. The Consolidated Plan is based on a community's 
strategic plan over the next 3-5 years. The use of climate resilience 
data will help a community identify its vulnerabilities and determine 
whether there are priorities that the jurisdiction can address, as well 
as develop preventive measures to address known issues in advance of a 
disaster occurring. HUD appreciates the commenter responding to its 
specific inquiry about post-disaster reviews. HUD is not mandating such 
review in this final rule but encourages jurisdictions to undertake 
these types of assessments.
    Comment: Ensure communities are aware of local hazard mitigation 
plans. A commenter stated that guiding communities to consider and 
integrate this information into their Consolidated Plans is an 
excellent move by HUD, assuring that risk reduction dovetails with a 
community's economic and social development goals. The commenter stated 
that its concern is that communities may not be aware of the existence 
of local hazard mitigation plans, and may unfortunately duplicate 
efforts that have already been expended on their behalf. The commenter 
stated that its hope is that in the guidance for the rule, HUD would 
direct communities to explore with local emergency managers and 
planners the existence of current local hard mitigation plans, consider 
the content of those plans (which often includes information about low-
income areas and vulnerability), and then use the information to inform 
decisions made in the Consolidated Plans, referring to the mitigation 
plan documents for justification or further data. The commenter stated 
that in this way, there will be no duplication of effort, no confusion 
as to valid risk assessment data, and the integration of mitigation 
measures, policies and programs will be a seamless practice across a 
community's planning portfolio.
    HUD Response: HUD's rule addresses the commenter's concern by 
requiring jurisdictions to consult with State and local emergency 
managers (who are responsible for developing the State and local hazard 
mitigation plans).
    Comment: Coordinate and align with existing Federal, State and 
local natural hazard risk management plans. A commenter stated that 
while it understands HUD's intent to ensure that

[[Page 91008]]

communities consider resilience to natural hazard risks as a part of 
the Consolidated Plan, the proposal goes about it in the wrong way. The 
commenter stated that instead of asking communities to undertake 
potentially new, unnecessary, and duplicative analysis, HUD should 
focus on encouraging coordination and alignment with the pre-existing 
Federal, State, and local plans that they already follow to comply with 
the various programs that focus on resilience and natural hazard 
planning. The commenter stated that it is concerned by the list of 
resources in the rule and cites to the ``Impact of Climate Change and 
Population Growth on the National Flood Insurance Program Through 
2100'' as an example of such concern. The commenter expressed concerns 
that the implication that this study could be included as the basis of 
specific management decisions at a community level, since it would seem 
to run counter to the scope and objectives of the study. The commenter 
stated that the uncertainty that remains in accounting for mapping 
future conditions, such as risks due to changes caused by climate 
change, is the very reason that multiple segments of the National Flood 
Insurance Program (NFIP) continue to examine the issue and how it might 
best be addressed. The commenter stated that given that it is an 
ongoing topic currently being studied by issue area experts such as the 
Technical Mapping Advisory Council (TMAC), this is not something that 
individual communities should be expected to get out in front of. The 
commenter further stated that as the NFIP falls completely outside the 
jurisdiction and expertise of HUD, the potential unintended 
consequences may not be fully understood. The commenter stated that if 
HUD chooses to move forward with promulgation of this rulemaking and 
provide communities with a list of suggested resources for them to 
consider, HUD should concentrate on more practical planning resources 
which will still provide communities flexibility such as the Community 
Resilience Planning Guide for Buildings and Infrastructure Systems 
prepared by the National Institute of Standards and Technology (NIST)
    HUD Response: HUD agrees that it will continue to encourage 
coordination and alignment with the pre-existing Federal, State, and 
local plans that focus on resilience and natural hazard planning is a 
benefit to the jurisdiction.
    Comment: Require States and local jurisdictions to take action to 
improve natural hazard resilience to protect Federal taxpayer 
investments. A commenter expressed strong support for the rule but 
expressed disappointment that the rule does not require actions to be 
taken. The commenter stated that it believes that there should be a 
much stronger attempt to compel States and communities to take action 
to improve natural hazard resilience to protect federal taxpayer 
investments--not merely just require an assessment of it.
    HUD Response: HUD reiterates that the Consolidated Planning process 
provides States and local government the flexibility and responsibility 
to determine where HUD funding should be expended. Through the 
Consolidated Planning process, jurisdictions will continue to have the 
flexibility to determine their own needs and priorities for 
distributing funds covered by the Consolidated Plan process. It will be 
up to a jurisdiction through its needs assessment process to determine 
whether to select either of these issues as a priority need. HUD has no 
authority to require that grantees carry out certain types of 
activities or to achieve specific objectives.
    Comment: Ensure that jurisdictions comply with the Federal Flood 
Risk Management Standard (FFRMS). A commenter stated that HUD must 
ensure that jurisdictions funded by HUD comply with the FFRMS, 
established by Executive Order 13690 (E.O. 13690) and Executive Order 
11988 (E.O. 11988). The commenter stated that the FFRMS not only 
reinforces the original intent of E.O. 11988--``to avoid to the extent 
possible the long and short-term adverse impacts associated with the 
occupancy and modification of floodplains and to avoid direct or 
indirect support of floodplain development wherever there is a 
practicable alternative,'' but expands upon it by requiring the federal 
government to ``take action, informed by the best-available and 
actionable [climate] science,'' to improve the nation's resilience to 
flooding.
    The commenter stated that the importance of transitioning from an 
emphasis on flood protection to a broader focus on flood risk 
management cannot be overstated because floodwaters can never be 
completely controlled, nor the risks associated with flooding 
completely eliminated. This is especially true when the impacts of 
climate change are considered.
    HUD Response: HUD is addressing this issue through separate 
rulemaking.

IV. This Final Rule

    As noted in Section III of this preamble, this final rule makes one 
change from the proposed rule. In response to public comment, HUD no 
longer identifies in the regulatory text specific recommended sources 
for Consolidated Plan jurisdictions to consult for both assessments. 
When included in the regulatory text, commenters thought these were 
required sources to consult, rather than recommended sources. HUD 
agrees with the commenters that such sources may change over time or 
their names may change, or new sources will be introduced. HUD agreed 
with the commenters that the better approach is to list these sources 
outside of the regulation, in guidance.
    Consultation and citizen participation requirements (Sec. Sec.  
[thinsp]91.100, 91.105, 91.110, 91.115). HUD's currently codified 
Consolidated Plan regulations require that local governments and States 
consult public and private agencies that provide assisted housing, 
health services, and social and fair housing services during 
preparation of the Consolidated Plan. Under the currently codified 
regulations, local governments and States are also required, in their 
citizen participation plan, to encourage the participation of local and 
regional institutions and businesses in the process of developing and 
implementing their Consolidated Plans. This rule amends these 
requirements to specify that local governments and States must consult 
with public and private organizations, including broadband internet 
service providers, and other organizations engaged in narrowing the 
digital divide. Further, the citizen participation plan must encourage 
their participation in implementing any components of the plan designed 
to narrow the digital divide for low-income residents. The rule also 
requires local governments and States to consult with agencies whose 
primary responsibilities include the management of flood prone areas, 
public land, or water resources, and emergency management agencies in 
the process of developing the Consolidated Plan.
    Contents of Consolidated Plan (Sec. Sec.  [thinsp]91.5, 91.200, 
9.200, 91.210, 91.300, 91.310). The rule makes several changes to these 
sections in subparts C and D of HUD's regulations 24 CFR part 91, which 
establish the required contents of the Consolidated Plan.
    First, the rule requires that, in describing their consultation 
efforts, local governments and States describe their consultations with 
public and private organizations, including broadband internet service 
providers, other organizations engaged in narrowing the digital divide, 
agencies whose primary responsibilities include the management of flood 
prone areas, public land or water resources, and emergency management 
agencies.

[[Page 91009]]

    Second, the jurisdiction must also describe broadband needs in 
housing occupied by low- and moderate-income households based on an 
analysis of data, identified by the jurisdiction, for its low- and 
moderate-income neighborhoods.
    Third, the rule requires the jurisdiction to provide an assessment 
of natural hazard risk to low- and moderate-income residents based on 
an analysis of data identified by the jurisdiction. Possible sources of 
such data include (1) the most recent National Climate Assessment, (2) 
the Climate Resilience Toolkit, (3) the Community Resilience Planning 
Guide for Buildings and Infrastructure Systems prepared by the National 
Institute of Standards and Technology (NIST), or (4) other climate 
risk-related data published by the Federal government or other State or 
local government climate risk related data, including FEMA-approved 
hazard mitigation plans which incorporate climate change. HUD 
encourages the use of other plans, including a jurisdiction's hazard 
mitigation plan, in identifying community needs and priorities.
    By undertaking these two analyses as part of their Consolidated 
Planning, HUD believes that jurisdictions become better informed of two 
emerging community needs in the world today: (1) The importance of 
broadband access, which opens up opportunity to a wide range of 
services, markets, jobs, educational, cultural and recreational 
opportunities; and (2) the importance of being cognizant and prepared 
for environmental and geographical conditions that may threaten the 
health and safety of communities. As noted earlier in this preamble, 
HUD is not mandating that jurisdictions take actions in either of these 
areas, but HUD believes that these are two areas that must be taken 
into consideration in a jurisdiction's planning for its expenditure of 
HUD funds.

V. Findings and Certifications

Regulatory Review--Executive Orders 12866 and 13563

    Under Executive Order 12866 (Regulatory Planning and Review), a 
determination must be made whether a regulatory action is significant 
and therefore, subject to review by the Office of Management and Budget 
(OMB) in accordance with the requirements of the order. Executive Order 
13563 (Improving Regulations and Regulatory Review) directs executive 
agencies to analyze regulations that are ``outmoded, ineffective, 
insufficient, or excessively burdensome, and to modify, streamline, 
expand, or repeal them in accordance with what has been learned. 
Executive Order 13563 also directs that, where relevant, feasible, and 
consistent with regulatory objectives, and to the extent permitted by 
law, agencies are to identify and consider regulatory approaches that 
reduce burdens and maintain flexibility and freedom of choice for the 
public. This rule was determined to be a ``significant regulatory 
action'' as defined in section 3(f) of the Executive Order (although 
not an economically significant regulatory action, as provided under 
section 3(f)(1) of the Executive Order).
    As noted, the regulatory amendments are designed to assist 
Consolidated Plan jurisdictions in assessing two emerging needs of 
communities in this changing world. Specifically, the final rule 
directs States and local governments to consider broadband access and 
natural hazard resilience in their consolidated planning efforts by 
using readily available data sources. Where access to broadband 
Internet service is either not currently available or only minimally 
available, jurisdictions will be required to consider ways to bring 
broadband Internet access to low- and moderate-income residents, 
including how HUD funds could be used to narrow the digital divide for 
these residents. Further, where low- and moderate-income communities 
are at risk of natural hazards, including those that may be exacerbated 
due to climate change, States and local governments must consider ways 
to incorporate hazard mitigation and resilience into their community 
planning and development goals, including the use of HUD funds.

Benefits and Costs of the Final Rule

A. Benefits
    The Consolidated Planning process benefits jurisdictions by 
establishing the framework for a community-wide dialogue to identify 
housing and community development needs for 1,255 jurisdictions, 
including 1,205 localities and all 50 States. Rather than a piecemeal 
approach to planning based on differing program requirements, the 
Consolidated Plan enables a holistic approach to the assessment of 
affordable housing and community development needs and market 
conditions. HUD established the Consolidated Plan, through a 1994 final 
rule, for the explicit purpose of linking disparate program planning 
requirements, thereby ensuring ``that the needs and resources of . . . 
[jurisdictions] are included in a comprehensive planning effort to 
revitalize distressed neighborhoods and help low-income residents 
locally.'' \3\ The Consolidated Plan replaced a dozen separate planning 
mechanisms with a unified approach enabling communities to make data-
driven, place-based investment decisions.
---------------------------------------------------------------------------

    \3\ 60 FR 1878 (January 5, 1994).
---------------------------------------------------------------------------

    New housing and community development needs have arisen in the 21 
years since the Consolidated Plan was created. Two of the most pressing 
emerging needs facing communities in the twenty-first century are the 
digital divide and climate change. Despite the benefits described above 
of a comprehensive approach to planning and the allocation of scarce 
Federal dollars, jurisdictions are not currently required to consider 
either the digital divide or climate change resilience in development 
of their Consolidated Plans. Jurisdictions may therefore place a low 
priority on assessing, and using Federal dollars to address, these 
critical issues relative to other needs included in the Consolidated 
Plan. As a worst-case scenario, omitting these needs from the 
consolidated planning process could mean that communities elect to 
defer considering these needs.
    The direct benefits provided by the final rule are, therefore, to 
help ensure that Consolidated Plan jurisdictions consider broadband 
access and natural hazard resilience as part of their comprehensive 
assessment and planning efforts, including their determination of the 
most effective use of HUD grant funds.
B. Costs
    The costs of the revised consultation and reporting requirements 
will not be substantial since the regulatory changes made by this final 
rule build upon similar existing requirements for other elements 
covered by the consolidated planning process rather than mandating 
completely new procedures.
    A complete Consolidated Plan that contains both a Strategic Plan 
and Annual Action Plan is submitted once every 3 to 5 years. An Annual 
Action Plan is submitted once a year. HUD data indicate that the cost 
of preparing the Strategic Plan for a locality is $5,236, and for a 
State is $14,382. The cost of preparing the Annual Action Plan is 
$1,904 for a locality and $6,392 for each State. HUD estimates that the 
increase in costs resulting from addressing the new elements under the 
new rule will be minimal. Specifically, HUD estimates that cost to a 
locality of preparing the Strategic Plan will increase to $5,406, while 
the cost to a State will increase to $14,552. This represents an 
increase of $170 per locality as well as per State.

[[Page 91010]]

The cost of preparing the Annual Action Plan will also increase by the 
same amount, to $2,074 for a locality and $6,562 for a State. While 
these are not trivial amounts, they are not substantial when considered 
in proportion to HUD grant funding (for example, the average CDBG grant 
to entitlement communities in FY 2012 was approximately $1.7 
million).\4\
---------------------------------------------------------------------------

    \4\ Eugene Boyd, Community Development Block Grants: Recent 
Funding History (Congressional Research Service, February 6, 2014), 
available online at: https://www.hsdl.org/?view&did=750383.
---------------------------------------------------------------------------

    The amounts of the increased costs are based on HUD's estimate of 
the increased number of hours it will take jurisdiction to complete the 
new assessments. The table below summarizes the cost of the increased 
burden hours across all jurisdiction that submit a Consolidated Plan.

----------------------------------------------------------------------------------------------------------------
                                                                                                     Completed
             Consolidated plan tasks                 Number of       Increased     Cost per hour   consolidated
                                                    respondents    burden hours         \5\            plan
----------------------------------------------------------------------------------------------------------------
                                                   Localities
----------------------------------------------------------------------------------------------------------------
Strategic Plan Development......................            1205               5              34        $204,850
Action Plan Development.........................            1205               5              34         204,850
----------------------------------------------------------------------------------------------------------------
                                                     States
----------------------------------------------------------------------------------------------------------------
Strategic Plan Development......................              50               5              34           8,500
Action Plan Development.........................              50               5              34           8,500
                                                 ---------------------------------------------------------------
    Total.......................................  ..............  ..............  ..............        $426,700
----------------------------------------------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \5\ Assumes a blended hourly rate that is equivalent to a GS-12, 
Step 5 Federal Government Employee
---------------------------------------------------------------------------

    Further, and as noted elsewhere in this preamble, HUD has taken 
several actions to further mitigate the cost of the regulatory changes. 
Jurisdictions will be able to base the required assessments on data 
that are already readily available on the Internet, and provided to 
grantees via the eCon Planning Suite. Therefore, jurisdictions will not 
have to incur the expense and administrative burdens associated with 
collecting data. Moreover, the proposed rule does not mandate that 
actions be taken to address broadband needs or climate change needs. 
Consolidated plan jurisdictions are in the best position to decide how 
to expend their HUD funds. However, HUD believes that the additional 
analyses required by this proposed rule may highlight areas where 
expenditure of funds would assist in opening up economic opportunities 
through increased broadband access or mitigate the impact of possible 
natural hazard risks and climate change impacts. HUD leaves it to 
jurisdictions to consider any appropriate methods to promote broadband 
access or protect against the adverse impacts of climate change, taking 
into account the other needs of their communities, and available 
funding, as identified through the consolidated planning process.
    The docket file is available for public inspection in 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 the HUD Headquarters building, 
please schedule an appointment to review the docket file by calling the 
Regulation Division at 202-402-3055 (this is not a toll-free number). 
Individuals with speech or hearing impairments may access this number 
via TTY by calling the Federal Relay Service at 800-877-8339.

Paperwork Reduction Act

    The information collection requirements contained in this rule have 
been submitted to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), and assigned an 
OMB control number 2506-0117.

Impact on Small Entities

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements, unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities.
    The rule will amend the Consolidated Plan regulations to require 
that States and local governments consider (1) broadband Internet 
service access for low- and moderate-income households to; and (2) the 
risk of potential natural hazards, including those that may be 
exacerbated due to climate change, to low- and moderate-income 
residents in their jurisdictions. As noted above under the heading 
``Regulatory Review'' in the ``Findings and Certifications'' section of 
this preamble, HUD's analysis of the economic costs associated with the 
new regulatory requirements indicate that the final rule will not 
impose significant economic burdens on HUD grantees, irrespective of 
their size.
    The RFA defines small governmental jurisdictions as those with a 
population of less than 50,000 persons.\6\ As discussed above, the 
Consolidated Planning process establishes the framework for identifying 
housing and community development needs for 1,255 jurisdictions, 
including 1,205 localities and all 50 States. Although HUD does not 
have precise data indicating the number of small Consolidated Plan 
localities as defined by the RFA, data from the Decennial census 
indicates that there are 758 large incorporated places.\7\ This leaves 
an estimated 447 small Consolidated Planning jurisdictions. This number 
represents a minority of 37 percent of all jurisdictions. As noted 
above, HUD estimates that cost to a locality of preparing the Strategic 
Plan (which is submitted once every 3 to 5 years) will increase by $170 
per locality. The cost of preparing the Annual Action Plan will also 
increase by the same amount. Assuming submission of the Strategic Plan 
on 3-year cycle, the total annual costs directly attributable to this 
rule is $270 per locality.\8\ The increased costs are minimal when 
considered in proportion to HUD grant funding. For example, and as 
noted above, the average CDBG grant to entitlement

[[Page 91011]]

communities in FY 2012 was approximately $1.7 million).
---------------------------------------------------------------------------

    \6\ 5 U.S.C. 601(5).
    \7\ https://www.census.gov/popest/data/cities/totals/2015/.
    \8\ Diving the increased cost of preparing the Strategic Plan by 
three to arrive at an annual figure ($170/3 = $57), and adding to 
the $170 increased cost of preparing the Annual Action Plan. $57 + 
$170 = $270.
---------------------------------------------------------------------------

    Moreover, HUD has taken several measures to even further minimize 
the costs associated with complying with the rule. As discussed above, 
jurisdictions will have the option to complete the required assessments 
using data that has already been compiled and readily available on the 
Internet. Jurisdictions will, therefore, not have to incur the expense 
and administrative burdens associated with collecting and analyzing 
data. Further, the rule does not mandate that any actions be taken in 
response to the required assessments. Jurisdictions retain the 
discretion to consider the most appropriate methods to address their 
assessments, taking into account other needs identified as part of the 
Consolidated Planning process as well as financial and other resource 
constraints.
    This rule therefore, which only requires consideration of the 
broadband and natural hazards resilience needs of low-income 
communities, has a minimal cost impact on all grantees subject to the 
Consolidated Planning process, whether large or small, and will not 
have a significant economic impact on substantial number of small 
entities.

Environmental Review

    This final rule does not direct, provide for assistance or loan and 
mortgage insurance for, or otherwise govern, or regulate, real property 
acquisition, disposition, leasing, rehabilitation, alteration, 
demolition, or new construction, or establish, revise or provide for 
standards for construction or construction materials, manufactured 
housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this 
final rule is categorically excluded from environmental review under 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
imposes either substantial direct compliance costs on state and local 
governments and is not required by statute, or the rule preempts State 
law, unless the agency meets the consultation and funding requirements 
of section 6 of the Executive Order. This rule would not have 
federalism implications and would not impose substantial direct 
compliance costs on State and local governments or preempt State law 
within the meaning of the Executive Order.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538) (UMRA) establishes requirements for federal agencies to 
assess the effects of their regulatory actions on State, local, and 
tribal governments, and on the private sector. This rule would not 
impose any federal mandates on any State, local, or tribal governments, 
or on the private sector, within the meaning of the UMRA.

List of Subjects in 24 CFR Part 91

    Aged, Grant programs--housing and community development, Homeless, 
Individuals with disabilities, Low- and moderate-income housing, 
Reporting and recordkeeping requirements.

    For the reasons discussed in the preamble, HUD amends 24 CFR part 
91 as follows:

PART 91--CONSOLIDATED SUBMISSIONS FOR COMMUNNITY PLANNING AND 
DEVELOPMENT PROGRAMS

0
1. The authority citation for part 91 continues to read as follows:

    Authority:  42 U.S.C. 3535(d), 3601-3619, 5301-5315, 11331-
11388, 12701-12711, 12741-12756, and 12901-12912.

Subpart A--General

0
 2. In Sec.  [thinsp]91.100, add two sentences to the end of paragraph 
(a)(1) to read as follows:


Sec.  [thinsp]91.100  Consultation; local governments.

    (a) * * *
    (1) * * * When preparing the consolidated plan, the jurisdiction 
shall also consult with public and private organizations. Commencing 
with consolidated plans submitted on or after January 1, 2018, such 
consultations shall include broadband internet service providers, 
organizations engaged in narrowing the digital divide, agencies whose 
primary responsibilities include the management of flood prone areas, 
public land or water resources, and emergency management agencies.
* * * * *

0
3. In Sec.  [thinsp]91.105, add two sentences at the end of paragraph 
(a)(2)(ii) to read as follows:


Sec.  [thinsp]91.105  Citizen participation plan; local governments.

    (a) * * *
    (2) * * *
    (ii) * * * The jurisdiction shall encourage the participation of 
public and private organizations. Commencing with consolidated plans 
submitted on or after January 1, 2018, such consultations shall include 
broadband internet service providers, organizations engaged in 
narrowing the digital divide, agencies whose primary responsibilities 
include the management of flood prone areas, public land or water 
resources, and emergency management agencies in the process of 
developing the consolidated plan.
* * * * *

0
 4. In Sec.  91.110, add two sentences at the end of paragraph (a) 
introductory text to read as follows:


Sec.  91.110  Consultation; States.

    (a) * * * When preparing the consolidated plan, the State shall 
also consult with public and private organizations. Commencing with 
consolidated plans submitted on or after January 1, 2018, such 
consultations shall include broadband internet service providers, 
organizations engaged in narrowing the digital divide, agencies whose 
primary responsibilities include the management of flood prone areas, 
public land or water resources, and emergency management agencies.
* * * * *

0
 5. In Sec.  91.115, add a sentence at the end of paragraph (a)(2)(ii) 
to read as follows:


Sec.  91.115  Citizen participation plan; States.

    (a) * * *
    (2) * * *
    (ii) * * * Commencing with consolidated plans submitted in or after 
January 1, 2018, the State shall also encourage the participation of 
public and private organizations, including broadband internet service 
providers, organizations engaged in narrowing the digital divide, 
agencies whose primary responsibilities include the management of flood 
prone areas, public land or water resources, and emergency management 
agencies in the process of developing the consolidated plan.
* * * * *

Subpart C--Local Governments; Contents of Consolidated Plan

0
 6. In Sec.  91.200, redesignate paragraph (b)(3)(iv) as paragraph 
(b)(3)(vi), and add new paragraphs (b)(3)(iv) and (v) to read as 
follows:


Sec.  91.200  General.

* * * * *
    (b) * * *
    (3) * * *
    (iv) Commencing with consolidated plans submitted on or after 
January 1, 2018, public and private organizations, including broadband 
internet service providers and organizations engaged in narrowing the 
digital divide;

[[Page 91012]]

    (v) Commencing with consolidated plans submitted on or after 
January 1, 2018, agencies whose primary responsibilities include the 
management of flood prone areas, public land or water resources, and 
emergency management agencies; and
* * * * *

0
7. Revise Sec.  91.210(a) to read as follows:


Sec.  91.210  Housing market analysis.

    (a) General characteristics. (1) Based on information available to 
the jurisdiction, the plan must describe the significant 
characteristics of the jurisdiction's housing market, including the 
supply, demand, and condition and cost of housing and the housing stock 
available to serve persons with disabilities, and to serve other low-
income persons with special needs, including persons with HIV/AIDS and 
their families.
    (2) Data on the housing market should include, to the extent 
information is available, an estimate of the number of vacant or 
abandoned buildings and whether units in these buildings are suitable 
for rehabilitation.
    (3) The jurisdiction must also identify and describe any areas 
within the jurisdiction with concentrations of racial/ethnic minorities 
and/or low-income families, stating how it defines the terms ``area of 
low-income concentration'' and ``area of minority concentration'' for 
this purpose. The locations and degree of these concentrations must be 
identified, either in a narrative or on one or more maps.
    (4) Commencing with consolidated plans submitted on or after 
January 1, 2018, the jurisdiction must also describe the broadband 
needs of housing occupied by low- and moderate-income households based 
on an analysis of data, identified by the jurisdiction, for its low- 
and moderate-income neighborhoods. These needs include the need for 
broadband wiring and for connection to the broadband service in the 
household units and the need for increased competition by having more 
than one broadband Internet service provider serve the jurisdiction.
    (5) Commencing with consolidated plans submitted on or after 
January 1, 2018, the jurisdiction must also describe the vulnerability 
of housing occupied by low- and moderate-income households to increased 
natural hazard risks associated with climate change based on an 
analysis of data, findings, and methods identified by the jurisdiction 
in its consolidated plan.
* * * * *

 Subpart D--State Governments; Contents of Consolidated Plan

0
 8. In Sec.  91.300, remove the word ``and'' following the semicolon at 
the end of paragraph (b)(3)(iii), redesignate paragraph (b)(3)(iv) as 
paragraph (b)(3)(vi), and add new paragraphs (b)(3)(iv) and (v) to read 
as follows:


Sec.  91.300  General.

* * * * *
    (b) * * *
    (3) * * *
    (iv) Commencing with consolidated plans submitted on or after 
January 1, 2018, public and private organizations, including broadband 
internet service providers and organizations engaged in narrowing the 
digital divide;
    (v) Commencing with consolidated plans submitted on or after 
January 1, 2018, agencies whose primary responsibilities include the 
management of flood prone areas, public land or water resources, and 
emergency management agencies; and
* * * * *

0
9. Revise Sec.  [thinsp]91.310(a) to read as follows:


Sec.  [thinsp]91.310  Housing market analysis.

    (a) General characteristics. (1) Based on data available to the 
State, the plan must describe the significant characteristics of the 
State's housing markets (including such aspects as the supply, demand, 
and condition and cost of housing).
    (2) Commencing with consolidated plans submitted on or after 
January 1, 2018, the State must describe the broadband needs of housing 
in the State based on an analysis of data identified by the State. 
These needs include the need for broadband wiring and for connection to 
the broadband service in the household units, the need for increased 
competition by having more than one broadband Internet service provider 
serve the jurisdiction.
    (3) Commencing with consolidated plans submitted on or after 
January 1, 2018, the State must also describe the vulnerability of 
housing occupied by low- and moderate-income households to increased 
natural hazard risks due to climate change based on an analysis of 
data, findings, and methods identified by the State in its consolidated 
plan.
* * * * *

    Dated: December 14, 2016.
Harriet Tregoning,
Principal Deputy Assistant Secretary for Community Planning and 
Development.
Nani A. Coloretti,
Deputy Secretary.
[FR Doc. 2016-30421 Filed 12-15-16; 8:45 am]
 BILLING CODE 4210-67-P