Housing Counseling Program: Revision of the Certification Timeline, 47300-47304 [2020-17138]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 85, Number 151 (Wednesday, August 5, 2020)]
[Rules and Regulations]
[Pages 47300-47304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17138]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 214

[Docket No. FR-6215-I-02]
RIN 2502-ZA34


Housing Counseling Program: Revision of the Certification 
Timeline

AGENCY: Office of the Assistant Secretary for Housing--Federal Housing 
Commissioner, HUD.

ACTION: Interim final rule.

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SUMMARY: HUD's current rule states that participating agencies and 
counselors must comply with certification requirements by 36 months 
after HUD commences the administration of the certification 
examination. That 36-month grace period ends on August 1, 2020. Due to 
the COVID-19 national emergency, which has caused the shutdown of the 
testing centers where housing counselors take the certification 
examination, a large number of housing counselors will be unable to get 
certified by the end of the grace period, resulting in a loss of 
Federal funding for some HUD-approved housing counseling agencies and 
loss of the ability to provide counseling that is required or provided 
in numerous HUD programs. Therefore, this interim rule amends the time 
period in which to become certified to a new deadline of August 1, 
2021.

DATES: This extension of the August 1, 2020 housing counseling 
certification deadline was effective upon the posting of HUD's interim 
rule. For purposes of providing valid notice of the contents of the 
interim final rule for any person who has not had actual knowledge of 
it the effective date is August 5, 2020.
    Comment due date: September 4, 2020.

ADDRESSES: Interested persons are invited to submit comments regarding 
this interim final rule. All communications must refer to the above 
docket number and title. There are two methods for submitting public 
comments.
    1. Submission of Comments by Mail. Comments may be submitted by 
mail to the Regulations Division, Office of General Counsel, U.S. 
Department of Housing and Urban Development, 451 7th Street SW, Room 
10276, Washington, DC 20410-0500.
    2. Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
www.regulations.gov. HUD strongly encourages commenters to submit 
comments electronically. Electronic submission of comments allows the 
commenter maximum time to prepare and submit a comment, ensures timely 
receipt by HUD, and enables HUD to make comments immediately available 
to the public. Comments submitted electronically through the 
www.regulations.gov website can be viewed by other commenters and 
interested members of the public. Commenters should follow the 
instructions provided on that site to submit comments electronically.

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

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

FOR FURTHER INFORMATION CONTACT: Lorraine Griscavage-Frisbee at Office 
of Housing Counseling, Office of Housing, Department of Housing and 
Urban Development, 302 Carson Street, Las Vegas, Nevada 89101, 
telephone number 702-366-2160 (this is not a toll-free number). Persons 
with hearing or

[[Page 47301]]

speech challenges may access this number through TTY by calling the 
toll-free Federal Relay Service at 800-877-8339. Questions can also be 
addressed to Lorraine Griscavage-Frisbee, Office of Housing Counseling, 
at [email protected]. Please include ``Housing Counseling 
Program: Date Housing Counseling Agencies Must Comply with 
Certification Requirements'' in the subject line of the email.

I. Background

    Section 106 of the Housing and Urban Development Act of 1968 (12 
U.S.C. 1701x) (Section 106) was amended by Subtitle D of title XIV of 
the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 
111-203, 124 Stat. 1376, approved July 21, 2010) to strengthen and 
improve the effectiveness of housing counseling that is required under 
or provided in connection with HUD programs (Section 106 amendments). 
The Section 106 amendments require that individuals providing housing 
counseling required under or provided in connection with HUD programs 
be certified by taking and passing an examination administered by HUD's 
Office of Housing Counseling (HUD certified housing counselors) (12 
U.S.C. 1701x(e)). On December 14, 2016, HUD published a final rule 
implementing the Section 106 certification requirements, including the 
requirement that, as explained in the rule preamble, ``housing 
counseling, that is ``required by or in connection with'' HUD programs 
may only be provided by HUD certified housing counselors working for 
HUD-approved housing counseling agencies (HCAs) that are approved to 
provide such housing counseling by HUD's Office of Housing 
Counseling''. See 81 FR 90632. The final rule codifies the grace period 
at 24 CFR 214.103(n)(4), which provides that ``[p]articipating agencies 
and housing counselors ``must be in compliance with requirements of 
paragraph (n) of this section by 36 months after HUD commences the 
administration of the certification examination by publication in the 
Federal Register.'' On May 31, 2017, HUD published a notice announcing 
the availability of the certification examination beginning August 1, 
2017, and providing the deadline of August 1, 2020, within which all 
housing counselors and HCAs must satisfy the certification requirements 
in the final rule. See 82 FR 24988.
    On March 13, 2020, the President declared the Coronavirus Disease 
2019 (COVID-19) outbreak a national emergency, effective March 1, 2020. 
The Centers for Disease Control and Prevention (CDC) has issued 
guidelines on slowing the spread of COVID-19 by practicing social 
distancing and staying home, if one is sick. In addition, many 
municipal and state governments issued shelter-in-place orders 
requesting their residents to stay indoors. HUD housing counselor 
certification testing centers started to close in mid-March 2020, and 
by mid-April 2020, all 462 testing centers had closed. In addition, all 
35 HUD in-person place-based housing counselor certification trainings 
originally scheduled were cancelled.
    Without suspending the requirement that participating agencies and 
housing counselors must be certified by of August 1, 2020, housing 
counselors who had not yet passed the certification exam would be 
unable to provide housing counseling required by or in connection with 
HUD programs, including those who were unable to attend the cancelled 
in-person place-based housing counselor certification trainings, who 
were unable take the examination due to closed testing centers, or who 
did not have access to the appropriate technology to be able to take 
the exam online. HUD also recognizes that there will be a demand for 
housing counseling services by those experiencing economic hardship 
caused by previous compliance with guidelines to slow the spread of 
COVID-19.
    As of June 29, 2020, approximately 45 percent of housing counselors 
participating in HUD programs affected by the certification were still 
required to be certified by August 1, 2020. In anticipation of the 
impending final compliance date, and with HUD's substantial promotion 
of the certification, the average number of counselors passing the 
examination and becoming certified began to increase in early 2020. 
However, the COVID-19 national emergency and the resulting state stay-
at-home orders have severely affected the increasing momentum seen 
prior to the start of the National Emergency.
    Preparing for the exam and becoming certified can take several 
months. Preparation activities may include studying the examination 
topics with the knowledge assessment tool and taking the practice 
examination; studying through online or in-person training; taking the 
examination and retaking it, if needed; registering in FHA Connection; 
and requesting employment verification. HUD advises agencies to plan on 
at least a five-month timeline to complete the process from start to 
finish. Often, counselors must complete these activities over a longer 
period of time, as agencies must continue to provide services to 
clients; in fact, more than 20 percent of agencies have only one 
counselor on staff. In these cases, preparing for the examination is 
especially challenging under time constraints.
    As a result of the National Emergency, HUD's housing counseling 
training partners cancelled all 35 in-person certification trainings 
scheduled through May 2020. Additionally, test centers began to close 
on March 13, 2020. By mid-April, all 462 test centers closed, 
significantly impairing the ability of counselors to take the exam. As 
of July 6, 2020, 60 percent of the test centers remained closed. While 
counselors can take the exam online, this may require purchasing 
additional equipment, which may not be possible for many housing 
counselors. HUD's data demonstrate that 90 percent of certification 
candidates take the exam at a testing center. With the impending 
certification deadline ahead, the elimination of in-person preparation 
courses and the closing of testing centers has resulted in counselors 
losing the option for an in-person examination to become certified at a 
critical point. Given that the stay-at-home orders and the nature and 
scope of banned activities differs from state to state, it is difficult 
to say when in-person examination prep and full testing center capacity 
will be reestablished across the country. Further, testing centers will 
likely reopen on a state-by-state basis; this, too, makes it impossible 
to determine when there will be sufficient capacity to begin testing a 
large number of counselors.
    At the same time, the housing counseling industry is experiencing 
an increase in the need for rental, foreclosure, and Home Equity 
Conversion Mortgage (HECM) counseling services during the crisis by 
families experiencing financial hardship due to the impacts of COVID-
19. This increased demand for client services is causing counselors to 
shift away from preparing for and completing the exam. COVID-19 is also 
increasing the intensity and duration of services clients require. 
Agencies will need to accommodate more counseling requests, and 
counselors will spend more time counseling their clients, communicating 
with loan servicers, and maintaining proper documentation due to the 
services associated with loss mitigation counseling. Counselors and 
clients are experiencing long wait times when contacting servicers and 
state-wide foreclosure task forces are being reactivated--all to deal 
with the

[[Page 47302]]

significant increase in request for loss mitigation services.
    In addition to the Housing Counseling Program, 25 other HUD 
programs are affected by the certification deadline since the 
requirements apply to any housing counseling required by or in 
connection with any program administered by HUD. HUD also estimates 
that over 2,500 Community Planning and Development program participants 
and public housing authorities will be affected by the certification 
requirement. Clients participating in housing counseling services 
provided by other HUD programs may lose access to counseling services, 
if implementation of the certification requirements reduces industry 
capacity.
    A lack of certified counselors could also affect the recovery 
activities funded directly by the Coronavirus Aid, Relief, and Economic 
Security Act (CARES Act) (Pub. L. 116-136). The CARES Act allocated 
more than $2 billion to supplement the conventional Community 
Development Block Grant (CDBG) program. Housing counseling services is 
an eligible activity under CDBG, and grantees may use this funding to 
provide services to aid in the recovery.
    A lack of certified counselors may also make a housing counseling 
agency ineligible for grant funds, further crippling the industry at a 
critical time. In addition, no direct statutory relief has been 
provided by Congress for this program. Therefore, rulemaking to extend 
the grace period during which counselors and counseling agencies can 
become certified is necessary.

II. This Interim Final Rule

    This interim rule is intended to allow existing housing counselors 
and agencies to continue to operate during the period of the national 
emergency caused by the COVID-19 pandemic, and also to provide 
sufficient time for those counselors who have not become certified to 
take the necessary classes. Therefore, this interim rule will amend 24 
CFR 214.103(n)(4) to provide that participating agencies and housing 
counselors must be in compliance with requirements of paragraph (n) of 
this section by August 1, 2021. Thereby giving an additional year for 
participating agencies and housing counselors to come into compliance 
with the certification requirement.

III. Justification for Interim Rulemaking and Effective Date

    In general, HUD publishes a rule for public comment before issuing 
a rule for effect, in accordance with its own regulations on 
rulemaking, 24 CFR part 10. Part 10, however, provides for exceptions 
from that general rule where the Department finds good cause to omit 
advance notice and public participation. The good cause requirement is 
satisfied when the prior public procedure is ``impracticable, 
unnecessary, or contrary to the public interest.''
    Prior public procedure in this case is impracticable and contrary 
to the public interest. A majority of housing counselors operating in 
HUD's programs, including programs in which housing counseling is a 
requirement, will become ineligible on August 1, 2020. Due to the 
COVID-19 emergency, these counselors are not able to become certified 
by that time. This will result in a loss of grant funding for HUD 
counseling agencies, and a curtailment of HUD programs dependent on 
housing counseling being available. On August 1, 2020, housing 
counseling agencies that are not staffed with certified counselors will 
become ineligible for HUD grant funding, resulting in possible 
penalties. Proposed and final rulemaking would extend this problem far 
beyond the August 1, 2020 deadline, which would cripple the counseling 
program that many HUD program participants rely on. Therefore, the 
Department finds that good cause exists to publish this interim rule 
without an opportunity for prior public comment. For the same reasons, 
the Department finds that there is good cause to waive the delay in 
effective date. While section 553(d) of the Administrative Procedure 
Act and HUD's rule at 24 CFR 10.1 generally require publication in the 
Federal Register 30 days in advance of the effective date, these 
authorities contain exceptions for rules that (1) grant or recognize an 
exemption or relieve a restriction, and (2) for rules where there is 
otherwise good cause found and published with the rule. Because this 
rule provides relief from the impending August 1 deadline that would 
detrimentally limit the availability of housing counseling, this rule 
meets both criteria for immediate effectiveness.
    Although HUD is issuing this rule to take effect immediately, HUD 
is inviting the interested public to submit comments for a 30-day 
period following publication. HUD will take any comments received into 
consideration and determine whether any further changes should be made.

IV. Justification for Shortened Comment Period

    In accordance with HUD's regulations on rulemaking at 24 CFR part 
10, it is HUD's policy that the public comment period for proposed 
rules should be 60 days. In the past, HUD has generally provided for 60 
days for public comment in the case of interim rules as well. However, 
HUD's policy does not require 60 days for public comment in the case of 
interim rules.
    In this case, the regulatory change being made is straightforward 
and addresses a single issue. Due to the COVID-19 national emergency, 
the certification deadline in the current rule simply cannot be met, 
for reasons stated in this preamble. The length of time the emergency 
will last is unknown. Therefore, the rule must be changed to conform to 
these facts.
    HUD does not believe that 60 days is needed for public 
consideration of the straightforward and necessary change being made in 
this interim rule. On the other hand, if HUD determines to adopt any 
suggestions that may be made in the public comments in the final rule, 
HUD would like to be able to do so as quickly as possible so that 
housing counseling organizations and individual housing counselors will 
have certainty about their obligations at the earliest possible date.
    For these reasons, HUD has determined that in this case a 30-day 
public comment period is appropriate.

V. Notification to Congress Under 42 U.S.C. 3535(o)(4)

    Under 42 U.S.C. 3535(o)(1), HUD is generally required to transmit 
to the Committee on Banking, Housing, and Urban Affairs of the Senate 
and the Committee on Banking, Finance and Urban Affairs of the House of 
Representatives an agenda of all rules or regulations which are under 
development or review by the Department. Under 42 U.S.C. 3535(o)(2)(B), 
any rule or regulation which does not appear on an agenda submitted 
under section 3535(o)(1) must be submitted to both such Committees at 
least 15 calendar days prior to its being published for comment, and 
under 42 U.S.C. 3535(o)(3), no rule or regulation may become effective 
until after the expiration of the 30-calendar day period beginning on 
the day after the day on which such rule or regulation is published as 
final. Pursuant to 42 U.S.C. 3535(o)(4), however, the requirements of 
sections 3535(o)(2) and (3) may be waived upon notification to and 
agreement with the Chairmen and Ranking Members of the committees 
designated under section 3535(o)(1). Accordingly, the Department has 
followed such steps.

[[Page 47303]]

VI. 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 not determined to be a 
``significant regulatory action'' as defined in section 3(f) of the 
Executive order.
    This rule, by extending the grace period for counselors to become 
certified, will allow HUD's housing counseling program and other 
programs to continue to operate during the COVID-19 emergency. It will 
not impose any additional requirements or burdens. It will relieve 
housing counselors of a difficult burden of compliance during the 
pandemic. Additionally, the testing centers themselves may be under a 
variety of shutdown or social distancing orders or recommendations 
depending on their location, making it fundamentally impossible for all 
counselors to be certified by the deadline.
    The final rule estimated the nationwide cost of the examination and 
training would total approximately $3,936,340 over 5 years with costs 
decreasing over time as more housing counselors were certified. 81 FR 
90633. The final rule also estimated that if 140 loan modifications are 
made and 125 foreclosures are avoided over a period of 5 years the 
benefits of final rule would exceed the projected compliance costs. Id. 
HUD concluded that the benefits of the rule would be outweighed given 
the reduction of foreclosures and loan modifications as a result of 
trained housing counselors helping borrowers make an informed decision 
when obtaining an affordable purchase loan or an affordable loan 
modification.
    Given the current conditions under COVID-19, HUD believes that 
extending the deadline of compliance is necessary for housing 
counselors to become certified. HUD does not believe this extension 
will increase the costs, but instead, will spread the costs over a 
longer period of time. HUD also notes that the initial estimate was 
based on the cost of testing being $100 for online testing and $140 for 
proctored testing but those costs were subsequently reduced by HUD to 
$60 for online testing and $100 for proctored testing. 82 FR 24989. In 
addition, HUD notes that in both the proposed and final rule, grant 
funding could be used to assist with testing and training. In FY 2019, 
HUD provided over $42 million in grant funding to HUD-approved Housing 
Counseling agencies.\1\ HUD still believes that the benefits will 
outweigh the costs especially given the reduction in testing costs and 
total HUD funds going to HUD-approved Housing Counseling agencies.
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    \1\ https://www.hudexchange.info/programs/housing-counseling/
nofa/
#:~:text=On%20October%202%2C%202019%2C%20HUD,to%20help%20them%20avoid
%20foreclosure.
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    Therefore, this interim rule is not expected to impose any burdens 
or costs.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
establishes requirements for federal agencies to assess the effects of 
their regulatory actions on state, local, and tribal governments and 
the private sector. This interim final rule will not impose any federal 
mandates on any state, local, or tribal governments or the private 
sector within the meaning of UMRA.

Environmental Review

    This interim final rule does not (i) 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 (ii) Establish, revise, 
or provide for standards for construction or construction materials, 
manufactured housing, or occupancy. Accordingly, under 24 CFR 
50.19(c)(1), this interim final rule is categorically excluded from 
environmental review under the National Environmental Policy Act of 
1969 (42 U.S.C. 4321).

Impact on Small Entities

    The Regulatory Flexibility Act (RFA) (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. 
This interim final rule allows housing counseling agencies to continue 
to operate as they currently do during the COVID-19 emergency. 
Therefore, the undersigned certifies that this interim final rule will 
not have a significant impact on a substantial number of small 
entities.
    Notwithstanding HUD's belief that this interim final rule will not 
have a significant effect on a substantial number of small entities, 
HUD specifically invites comments regarding any less burdensome 
alternatives to this interim final rule that will meet HUD's objectives 
as described in this preamble.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either imposes 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 interim final rule does not 
have federalism implications and does not impose substantial direct 
compliance costs on state and local governments nor preempt state law 
within the meaning of the Executive order.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance (CFDA) Program number 
for the Housing Counseling Program is 14.169.

List of Subjects in 24 CFR Part 214

    Administrative practice and procedure; Loan program-housing and 
community development; Organization and functions (government 
agencies); Reporting and recordkeeping requirements.

    Accordingly, for the reasons stated in the preamble, HUD amends 24 
CFR part 214 as follows:

PART 214--HOUSING COUNSELING PROGRAM

0
1. The authority citation for part 214 continues to read as follows:

    Authority:  12 U.S.C. 1701x, 1701x-1; 42 U.S.C. 3535(d).


0
2. Amend Sec.  214.103(n)(4) to read as follows:


Sec.  214.103   Approval criteria.

* * * * *
    (n) * * *
    (4) Participating agencies and housing counselors must be in 
compliance with

[[Page 47304]]

requirements of paragraph (n) of this section as of August 1, 2021.

Len Wolfson,
Acting FHA Commissioner--Assistant Secretary for Housing.
[FR Doc. 2020-17138 Filed 8-3-20; 4:15 pm]
BILLING CODE 4210-67-P