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Proposed Rule

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

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Start Preamble

AGENCY:

Office of the Assistant Secretary for Community Planning and Development, Department of Housing and Urban Development.

ACTION:

Proposed rule.

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 proposed rule would amend 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 proposed rule would require 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 into their decisions on how to invest HUD funds. The second concept to be added to the Consolidated Plan process would require 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:

Comments Due Date: July 18, 2016.

ADDRESSES:

Interested persons are invited to submit comments responsive to this proposed rule to the Office of General Counsel, Regulations Division, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0001. All submissions should refer to the above docket number and title. Submission of public comments may be carried out by hard copy or electronic submission.

1. Submission of Hard Copy Comments. Comments may be submitted by mail or hand delivery. Each commenter submitting hard copy comments, by mail or hand delivery, should submit comments to the address above, addressed to the attention of the Start Printed Page 31193Regulations Division. Due to security measures at all federal agencies, submission of comments by mail often results in delayed delivery. To ensure timely receipt of comments, HUD recommends that any comments submitted by mail be submitted at least 2 weeks in advance of the public comment deadline. All hard copy comments received by mail or hand delivery are a part of the public record and will be posted to http://www.regulations.gov without change.

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

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

Public Inspection of Comments. All comments submitted to HUD regarding this rule will be available, without charge, for public inspection and copying between 8 a.m. and 5 p.m., Eastern Time, weekdays at the above address. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number through TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number). Copies of all comments submitted are available for inspection and downloading at http://www.regulations.gov.

Start Further Info

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, toll-free, at 800-877-8339.

Persons with hearing or speech impairments may access this number through TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Purpose of This Proposed Rule

The purpose of this proposed 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 will be conducted using readily available data sources developed by Federal government agencies and other available data and analyses, including State, Tribal, and local hazard mitigation plans that have been approved by the Federal Emergency Management Agency (FEMA). 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. These two planning considerations reflect emerging needs of communities in this changing world. Broadband access provides access to a wide range of resources, services, and products and such access not only can assist individuals in improving their economic outlook, but also assists communities in this same way. 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.

B. Summary of Major Provisions of This Proposed Rule

The current 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 current 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. The proposed rule would require States and local governments, in preparing their consolidated plans, 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 floodprone areas, public land or water resources, and emergency management agencies. Jurisdictions must also encourage the participation of these entities in implementing relevant components of the plan.

The proposed rule would also require jurisdictions to describe broadband access in housing occupied by low- and moderate-income households based on an analysis of data for its low- and moderate-income neighborhoods in the National Broadband Map [1] created by the National Telecommunications and Information Administration (NTIA) of the Department of Commerce. Grantees may also use broadband availability data in the Federal Communications Commission (FCC) Form 477 [2] or other data identified by the jurisdiction, 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, the need for increased competition by having more than one broadband Internet service provider serve the jurisdiction.

The proposed rule would also require that jurisdictions provide, as part of their required housing market analysis, an assessment of natural hazard risks, including risks expected to increase due to climate change, to low- and moderate-income residents based on an analysis of data, findings, and methods in (1) the most recent National Climate Start Printed Page 31194Assessment,[3] the Climate Resilience Toolkit,[4] the Impact of Climate Change and Population Growth on the National Flood Insurance Program Through 2100,[5] or the Community Resilience Planning Guide for Buildings and Infrastructure Systems prepared by the National Institute of Standards and Technology (NIST); [6] (2) 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; or (3) other climate risk data identified by the jurisdiction, for which the source is cited in the jurisdiction's Consolidated Plan. Grantees may request Technical Assistance through their HUD Field Office or directly at www.HUDExchange.info/​get-assistance.

C. Costs and Benefits of This Proposed Rule

HUD's Consolidated Plan process, established by regulation in 1994, 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, Emergency Solutions Grants (ESG) program and the Housing with Opportunities for Persons With AIDS (HOPWA). 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 to increasing opportunity for an individual's success, but to 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 proposed rule are to promote a balanced planning process that more fully considers the housing, environmental, and economic needs of communities.

HUD does not anticipate that the costs of the revised consultation and reporting requirements will be significant since the regulatory changes proposed by this proposed 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 will be based on data readily available on the Internet. Therefore, jurisdictions will not have to incur the expense and administrative burdens associated with collecting data. Moreover, this proposed rule does not mandate that actions be taken to address broadband needs or climate change adaptation 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 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. 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.

II. Background

A. Broadband

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.” [7] In this memorandum, the President noted that access to high-speed broadband is no longer a luxury, but it is a necessity for American families, businesses, and consumers.[8] 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.

The memorandum established an interagency Broadband Opportunity Council, including representatives from the Executive Branch agencies, for the purposes of consulting with State, local, tribal, and territorial governments, as well as telecommunications companies, utilities, trade associations, philanthropic entities, policy experts, and other interested parties to identify and assess regulatory barriers and opportunities to broadband adoption. The council's report, published by the White House on September 21, 2015, included a number of specific actions that agencies (including HUD) agreed to take to promote greater broadband deployment and adoption. This change to the Consolidated Planning process is one of those actions.[9]

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.[10] 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 Start Printed Page 31195receiving, 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.

On March 9, 2016, President Obama launched the ConnectALL initiative to ensure that more Americans have the broadband they need to get a job, engage their community, and deliver opportunity to their children.[11] ConnectALL will increase the affordability of broadband for low-income Americans; deliver digital literacy skills; increase access to affordable devices; develop a tool to support broadband planning; bring together private sector corporations helping to deliver affordable connectivity; and marshal philanthropic support for digital inclusion. The goal of ConnectALL is to create a national effort to connect 20 million more Americans to broadband by 2020.

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.” [12] 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 proposed rule presents one such additional effort.

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.” [13] The Executive Order recognizes that the impacts of climate change—including an increase in prolonged periods of excessively high temperatures, more heavy downpours, 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 developed 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.[14] 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.[15] 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 proposed rule represents one step that HUD is taking to implement these recommendations.

III. This Proposed Rule

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: Community Development Block Grant (CDBG) program, HOME Investment Partnerships (HOME) program, Emergency Solutions Grant (ESG) program, and Housing Opportunities for Persons With AIDS (HOPWA) program. HUD's regulations for the consolidated planning are codified at 24 CFR part 91(entitled “Consolidated Submissions for Community Planning and Development Programs”).

The Consolidated Plan, which may have a planning duration of between 3 and 5 years, is designed to help States and local governments 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 Start Printed Page 31196coordinate 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 this rule would require States and local governments to consider broadband access and natural hazard resilience as part of their consolidated planning efforts. As provided in this proposed rule, States and local governments will need to consider the broadband needs of their low- and moderate-income residents, and the extent that available broadband Internet service providers and technology support these residents' broadband access needs. Where the required analysis demonstrates that such support is not currently available or is minimally available, States and local governments should consider ways to bring broadband Internet access to these residents, such as the extent to which broadband Internet service providers could be solicited to contribute to the broadband access needs of low-income residents, or how HUD funds could be used to narrow the digital divide for low- and moderate-income residents.

Further, where the required analysis demonstrates that 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 should consider ways to incorporate hazard mitigation and resilience into their community planning and development goals, development codes, and standards, including how HUD funds could be used to mitigate natural hazard risks, including increasing risks due to climate change, with other Federal, State, local, philanthropic, and private sector funding. In this regard, President Obama's Administration is committed to giving communities across the United States the information and tools they need to plan for current and future climate change impacts, such as flooding and sea-level rise. In March 2014, the Administration launched the Climate Data Initiative, an effort to make vast Federal data resources on climate change risks and impacts openly available to the public.[16] Following a major disaster designation, jurisdictions should consider reviewing and possibly revising the required resilience analysis. Such a review would assist jurisdictions in determining whether the disaster has introduced new or unanticipated hazard risks and consequences or unmet needs. Such a review would assist jurisdictions in deciding how best to use HUD funds to address new resilience-related and disaster recovery-related needs. HUD specifically invites public comments on the need for this type of post-disaster review and the possibility of requiring such a reevaluation at the final rule stage.

This proposed rule is one part of a broader set of Administration and HUD initiatives to narrow the digital divide and enhance climate resilience in low-income communities. Given the focus of the consolidated plan on housing needs, the assessments required by the proposed rule are limited to broadband access in housing and the vulnerability of housing to natural hazard risks. HUD, however, is cognizant of the critical non-housing needs of low-income communities. The adoption of broadband, which includes digital literacy by low-income residents is an equally critical component of closing the digital divide. Likewise, the evaluation of vulnerability to natural hazard risks on a broader, community-wide, level is an equally significant component of ensuring the resilience of low-income households. 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. Given the importance of broadband adoption to communities and the goals of this rulemaking, HUD strongly encourages jurisdictions to consider implementing such actions in their non-housing community development efforts. Similarly, HUD strongly encourages jurisdictions to consider the use of block grant funds for actions that enhance the resilience of communities to natural hazard risks as a whole. To this end, jurisdictions should consider basing such actions on the FEMA-approved State, Tribal, and local hazard mitigation plans that may be used to conduct the housing-specific assessments required by the proposed rule.

In addition, HUD continues to encourage regional planning considerations, and maintains the requirement for local governments and States to, in their citizen participation plan, encourage the participation of local and regional institutions and businesses in the process of developing and implementing their consolidated plans.

The proposed rule would make the following changes to the Consolidated Plan regulations:

1. Consultation and citizen participation requirements (§§ 91.100.91.105. 91.110, 91.115). The current 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 current 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. The proposed rule would amend 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 proposed rule would also require local governments and States to consult with agencies whose primary responsibilities include the management of floodprone areas, public land or water resources, and emergency management agencies in the process of developing the consolidated plan.

2. Contents of Consolidated Plan (§§ 91.5, 91.200, 9.200, 91.210, 91.300, 91.310). The proposed rule would make several changes to subparts C and D of HUD's regulations 24 CFR part 91, which establish the required contents of the consolidated plan. First, the proposed rule would require 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 floodprone areas, public land or water resources, and emergency management agencies.

Second, the jurisdiction must also describe broadband needs in housing occupied by low- and moderate-income households based on an analysis of data for its low- and moderate-income Start Printed Page 31197neighborhoods in the National Broadband Map. The National Broadband Map Web site may be accessed at http://www.broadbandmap.gov/​. Grantees may also use broadband availability data in the FCC Form 477 or other data identified by the jurisdiction, 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, the need for increased competition by having more than one broadband Internet service provider serve the jurisdiction.

Third, the proposed rule would also require the jurisdiction to provide an assessment of natural hazard risk to low- and moderate-income residents based on an analysis of data, findings and methods in (1) the most recent National Climate Assessment, the Climate Resilience Toolkit, the Impact of Climate Change and Population Growth on the National Flood Insurance Program Through 2100, or the Community Resilience Planning Guide for Buildings and Infrastructure Systems prepared by the National Institute of Standards and Technology (NIST); (2) 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; or (3) other climate risk data identified by the jurisdiction, for which the source is cited in the jurisdiction's Consolidated Plan.

The National Climate Assessment, located at http://nca2014.globalchange.gov/​, summarizes the impacts of climate change on the United States, now and in the future. A team of more than 300 experts guided by a 60-member Federal Advisory Committee produced the report, which was extensively reviewed by the public and experts, including federal agencies and a panel of the National Academy of Sciences.[17]

The Climate Resilience Toolkit, located at http://toolkit.climate.gov provides science-based tools, information, and expertise to help people manage their climate-related risks and opportunities, and improve their resilience to extreme events. The site is designed to serve interested citizens, communities, businesses, resource managers, planners, and policy leaders at all levels of government. The Climate Resilience Toolkit was developed over a six-month period in 2014 by a partnership of federal agencies and organizations led by National Oceanic and Atmospheric Administration.[18]

FEMA sponsored the report on Impact of Climate Change and Population Growth on the National Flood Insurance Program (available at http://www.acclimatise.uk.com/​login/​uploaded/​resources/​FEMA_​NFIP_​report.pdf) to fulfill a recommendation made by the Government Accountability Office to analyze the potential long-term implications of climate change and population growth on the National Flood Insurance Program. The study addresses riverine and coastal flood response to climate change, with projections at 20-year intervals through 2100, and found that the national average increase in floodprone areas by the year 2100 may approximate 40-45% for riverine areas and coastal areas.

The National Institute of Standards and Technology's (NIST) Community Resilience Planning Guide for Buildings and Infrastructure Systems, located at http://www.nist.gov/​el/​resilience, provides a six-step planning process that towns, cities, and counties can apply to better withstand hazard events and recovery more quickly. It provides a practical approach to help communities set priorities, allocate resources, and adopt codes and standards to reduce natural hazard and climate change risks by improving their resilience.

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.

IV. 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 Executive Order (although not an economically significant regulatory action, as provided under section 3(f)(1) of the Executive Order).

As noted in this preamble, the proposed regulatory amendments are designed to assist Consolidated Plan jurisdictions assess two emerging needs of communities in this changing world. Specifically, the proposed rule will direct States and local governments to consider broadband access and natural hazard resilience in their consolidated planning efforts by using readily available online 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 Proposed 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 over a thousand communities across the Nation.[19] Rather than a piecemeal Start Printed Page 31198approach 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.” [20] The Consolidated Plan replaced a dozen separate planning mechanisms with a unified approach enabling communities to make data-driven, place-based investment decisions.[21]

New housing and community development needs have arisen in the 21 years since the Consolidated Plan was created. As noted in this preamble, two of the most pressing emerging needs facing communities in the twenty-first century are the digital divide and climate change:

  • In a recent analysis, the President's Council of Economic Advisers (CEA) noted that the benefits of broadband Internet technology have not been evenly distributed.[22] Research shows that there remain substantial disparities in both Internet use and the quality of access. This “digital divide” is concentrated among older, less educated, and less affluent populations, as well as in rural parts of the country that tend to have fewer choices and slower connections.[23]
  • As President Obama has noted, climate change is happening now; it is not a distant threat. Its effects are already being felt in communities across the Nation. In some regions, droughts, wildfires, and floods are becoming more frequent and/or intense.[24] Average temperatures across the United States have increased between 1.3 and 1.9 degrees Fahrenheit since recordkeeping began in 1895.[25] Heat waves, hurricanes, and severe storms have all become more intense, and sea level rise is causing some communities to flood at high tides and threatening homes and critical infrastructure. Climate impacts have affected every region across the nation and inflicted large costs on the economy.[26]

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 than on other needs included in the Consolidated Plan. As a worst case scenario, it could mean that communities elect to defer considering these needs.

The direct benefits provided by the proposed 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 the most effective use of HUD grant funds. The CEA broadband analysis discussed above noted that closing the digital divide can increase productivity and open ladders of opportunity. Likewise, community investment in natural hazard resilience may help to insure security and quality of life against the rising environmental tolls associated with climate change.[27]

B. Costs

HUD does not anticipate that the costs of the revised consultation and reporting requirements will be substantial since the regulatory changes proposed by this proposed rule merely build upon similar existing requirements for other elements covered by the consolidated planning process rather than mandating completely new procedures. The economic costs of completing the Consolidated Plan are not significant. 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. 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).[28]

HUD does not anticipate the proposed regulatory changes will add much, if anything, to these costs. As noted above, the required assessments will be based on data that are already readily available on the Internet. 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.

Accordingly, HUD believes that the benefits of enhancing the ability of State and local government to comprehensively plan for housing and community development needs outweigh the minimal costs that may be associated with the revised Consolidated Plan requirements. 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 Start Printed Page 31199Management and Budget (OMB) for review and approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number.

The burden of the information collections in this rule is estimated as follows:

Reporting and Recordkeeping Burden

Information collectionNumber of respondentsResponse frequency (average) *Burden hours per responseTotal burden hours
Citizen participation plan for localities (§ 91.105) and States (§ 91.115)1,205 localities and 50 States122,510
Housing market analysis for local governments (§ 91.210) and States (§ 91.310)1,205 localities and 50 States122,510
Totals1,255145,020
* A complete Consolidated Plan is submitted once every 3-5 years. This response number reflects one response per Consolidated Plan submission.

In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting from members of the public and affected agencies comments on the following concerning this collection of information:

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

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

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

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

Interested persons are invited to submit comments regarding the information collection requirements in this rule. Under the provisions of 5 CFR part 1320, OMB is required to make a decision concerning this collection of information between 30 and 60 days after the publication date. Therefore, a comment on the information collection requirements is best assured of having its full effect if OMB receives the comment within 30 days of the publication. This time frame does not affect the deadline for comments to the agency on the proposed rule, however. Comments must refer to the proposal by name and docket number (5891-P-01) and must be sent to:

HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503, Fax number: 202-395-6947, and

Ms. Colette Pollard, Reports Liaison Officer, Department of Housing and Urban Development, 451 7th Street SW., Room 2204, Washington, DC 20410

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

Impact on Small Entities

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 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.

As noted above in this preamble, the proposed regulatory amendment will impose minimal, if any, economic burdens on HUD grantees, irrespective of their size. The proposed 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. The regulatory changes build upon their existing consolidated planning process rather than mandating completely new procedures. As discussed above, the economic costs of preparing the Consolidated Plan are not significant, and it is unlikely that the proposed changes will increase those costs since the required assessments will be mostly based on 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.

Moreover, the proposed rule does not mandate that any actions be taken in response to the required assessments. Where access to broadband Internet service is not currently available or is minimally available, 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 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. However, 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 proposed rule therefore, which only requires consideration of the broadband and Start Printed Page 31200natural 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.

Notwithstanding HUD's determination that this proposed rule will not have a significant economic effect on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives, as described in this preamble.

Environmental Review

This proposed 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 proposed 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 proposed 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 proposed 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.

Start List of Subjects

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
End List of Subjects

For the reasons discussed in the preamble, HUD proposes to amend part 91 as follows:

Start Part

PART 91—CONSOLIDATED SUBMISSIONS FOR COMMUNITY PLANNING AND DEVELOPMENT PROGRAMS

End Part Start Amendment Part

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

End Amendment Part Start Authority

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

End Authority Start Amendment Part

2. In § 91.100, add a sentence to the end of paragraph (a)(1) to read as follows:

End Amendment Part
Consultation; local governments.

(a) * * *

(1) * * * When preparing the consolidated plan, the jurisdiction shall also consult with public and private organizations, including broadband Internet service providers, organizations engaged in narrowing the digital divide, agencies whose primary responsibilities include the management of floodprone areas, public land or water resources, and emergency management agencies.

* * * * *
Start Amendment Part

3. In § 91.105, add a sentence at the end of paragraph (a)(2)(ii) to read as follows:

End Amendment Part
Citizen participation plan; local governments.

(a) * * *

(2) * * *

(ii) * * * The jurisdiction shall 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 floodprone areas, public land or water resources, and emergency management agencies in the process of developing the consolidated plan.

* * * * *
Start Amendment Part

4. In § 91.110, add a sentence at the end of paragraph (a) to read as follows:

End Amendment Part
Consultation; States.

(a) * * * When preparing the consolidated plan, the State shall also consult with public and private organizations, including broadband Internet service providers, organizations engaged in narrowing the digital divide, agencies whose primary responsibilities include the management of floodprone areas, public land or water resources, and emergency management agencies.

* * * * *
Start Amendment Part

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

End Amendment Part
Citizen participation plan; States.

(a) * * *

(2) * * *

(ii) * * * 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 floodprone areas, public land or water resources, and emergency management agencies in the process of developing the consolidated plan.

* * * * *
Start Amendment Part

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

End Amendment Part
General.
* * * * *

(b) * * *

(3) * * *

(iv) Public and private organizations, including broadband Internet service providers and organizations engaged in narrowing the digital divide;

(v) Agencies whose primary responsibilities include the management of floodprone areas, public land or water resources, and emergency management agencies; and

* * * * *
Start Amendment Part

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

End Amendment Part
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 Start Printed Page 31201concentrations must be identified, either in a narrative or on one or more maps.

(4) The jurisdiction must also describe the broadband needs of housing occupied by low- and moderate-income households based on an analysis of data for its low- and moderate-income neighborhoods in the National Broadband Map. Jurisdictions may also use broadband availability data in the FCC Form 477 or other data identified by the jurisdiction, 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, the need for increased competition by having more than one broadband Internet service provider serve the jurisdiction.

(5) 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 in:

(i) The National Climate Assessment, the Climate Resilience Toolkit, the Impact of Climate Change and Population Growth on the National Flood Insurance Program, or the NIST Community Resilience Planning Guide for Buildings and Infrastructure Systems;

(ii) Other climate risk-related data published by the Federal government or other State or local government climate risk-related data, including hazard mitigation plans approved by the Federal Emergency Management Agency that incorporate climate change; or

(iii) Other climate risk data identified by the jurisdiction, for which the source is cited in the jurisdiction's Consolidated Plan.

* * * * *
Start Amendment Part

8. In § 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 paragraph (b)(3)(iv) and paragraph (b)(3)(v) to read as follows:

End Amendment Part
General.
* * * * *

(b) * * *

(3) * * *

(iv) Public and private organizations, including broadband Internet service providers and organizations engaged in narrowing the digital divide;

(v) Agencies whose primary responsibilities include the management of floodprone areas, public land or water resources, and emergency management agencies; and

* * * * *
Start Amendment Part

9. Revise § 91.310(a) to read as follows:

End Amendment Part
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) The State must describe the broadband needs of housing in the State based on an analysis of data in the National Broadband Map. States may also use broadband availability data in the FCC Form 477 or other data identified by the jurisdiction, 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, the need for increased competition by having more than one broadband Internet service provider serve the jurisdiction.

(3) 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 in:

(i) The National Climate Assessment, the Climate Resilience Toolkit, the Impact of Climate Change and Population Growth on the National Flood Insurance Program, or the NIST Community Resilience Planning Guide for Buildings and Infrastructure Systems;

(ii) Other climate risk-related data published by the Federal government or other State or local government climate risk-related data, including hazard mitigation plans approved by the Federal Emergency Management Agency that incorporate climate change; or

(iii) Other climate risk data identified by the jurisdiction, for which the source is cited in the jurisdiction's Consolidated Plan.

* * * * *
Start Signature

Dated: April 15, 2016.

Harriet Tregoning,

Principal Deputy Assistant Secretary for Community Planning and Development.

End Signature End Supplemental Information

Footnotes

8.  The Web page for the National Broadband Map explains that “broadband refers to a high-speed, always-on connection to the Internet. The primary factors that people consider when deciding what type of broadband Internet service to subscribe to include service availability, connection speed, technology and price. Organizations define broadband in different ways. For information to be included on the National Broadband Map, the technology must provide a two-way data transmission (to and from the Internet) with advertised speeds of at least 768 kilobits per second (kbps) downstream and at least 200 kbps upstream to end users.” Please see http://www.broadbandmap.gov/​.

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9.  See, Broadband Opportunity Council, Report to President Obama at p. 14 (Aug. 20, 2015), available at https://www.whitehouse.gov/​sites/​default/​files/​broadband_​opportunity_​council_​report_​final.pdf .

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12.  80 FR18248, at 18249.

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13.  Executive Order 13653 was subsequently published in the Federal Register on November 6, 2013, at 78 FR 66819.

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14.  A summary of research on social vulnerability is provided in Kathy Lynn, Katharine MacKendrick, and Ellen M. Donoghue, Social Vulnerability and Climate Change: Synthesis of Literature (United States Department of Agriculture, August 2011), available online at: http://www.fs.fed.us/​pnw/​pubs/​pnw_​gtr838.pdf.

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19.  The Consolidated Plan is used by 1,255 jurisdictions. This number includes 1,205 localities all 50 States.

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20.  60 FR 1878 (January 5, 1994).

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21.  See footnote 15.

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22.  The Digital Divide and Economic Benefits of Broadband Access, Council of Economic Advisers (CEA) Issue Brief (March 2016) available online at: https://www.whitehouse.gov/​sites/​default/​files/​page/​files/​20160308_​broadband_​cea_​issue_​brief.pdf.

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23.  Thom File and Camille Ryan, Computer and Internet Use in the United States: 2013 (U.S. Census Bureau, November 2014) available online at: http://www.census.gov/​content/​dam/​Census/​library/​publications/​2014/​acs/​acs-28.pdf.

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28.  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.

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[FR Doc. 2016-11350 Filed 5-17-16; 8:45 am]

BILLING CODE 4210-67-P