Implementing Executive Order 13891; Promoting the Rule of Law Through Improved Agency Guidance Documents, 71537-71543 [2020-23982]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 85, Number 218 (Tuesday, November 10, 2020)]
[Rules and Regulations]
[Pages 71537-71543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23982]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 11

[Docket No. FR-6192-I-01]
RIN 2501-AD93


Implementing Executive Order 13891; Promoting the Rule of Law 
Through Improved Agency Guidance Documents

AGENCY: Office of General Counsel, HUD.

ACTION: Interim final rule.

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SUMMARY: This interim rule implements Executive Order (E.O.) 13891, 
``Promoting the Rule of Law Through Improved Agency Guidance 
Documents.'' This E.O. requires Federal agencies to publish regulations 
that establish processes and procedures for issuing guidance documents. 
The interim rule would create a new part 11 in title 24 of the Code of 
Federal Regulations (CFR) that outlines HUD policy on guidance 
documents and how HUD designates guidance documents. The interim rule 
would also establish a procedure by which the public may petition HUD 
for the withdrawal or modification of guidance documents, and the 
process for the public to make comments on certain significant guidance 
documents.

DATES: 
    Effective Date: December 10, 2020.
    Comment Due Date: January 11, 2021.

ADDRESSES: Interested persons are invited to submit comments regarding 
this rule to the Regulations Division, Office of General Counsel, 
Department of Housing and Urban Development, 451 7th Street SW, Room 
10276, Washington, DC 20410-0500. All submissions 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, 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 them 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 Facsimile Comments. Facsimile (fax) comments are not acceptable.
    Public Inspection of Public Comments. 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 appointment to review the public comments must be 
scheduled in advance by calling the Regulations Division at 202-708-
3055 (this is not a toll-free number). Individuals with

[[Page 71538]]

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). 
Copies of all comments submitted are available for inspection and 
downloading at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Aaron Santa Anna, Associate General 
Counsel, Office of Legislation and Regulation, Office of General 
Counsel, Department of Housing and Urban Development, 451 7th Street 
SW, Room 10282, Washington, DC 20410; telephone number 202-708-1793 
(this is not a toll-free number). Individuals with hearing or speech 
impediments may access this number via TTY by calling the Federal Relay 
Service during working hours at 1-800-877-8339 (this is a toll-free 
number).

SUPPLEMENTARY INFORMATION:

I. Background

A. The Purpose of HUD Guidance Documents

    The Department of Housing and Urban Development issues guidance 
documents that are statements of general applicability and future 
effect that set forth policy on statutory, regulatory, or technical 
issues or interpret statute or regulation. HUD guidance generally 
clarifies existing regulatory or statutory requirements that pertain to 
HUD programs or operations. HUD's guidance documents do not have the 
force and effect of law, except when restating statutory or regulatory 
authority or as incorporated into a contract. HUD guidance documents 
are not used to impose new requirements on the public except as 
expressly authorized by law.\1\
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    \1\ See, e.g., Reverse Mortgage Stabilization Act of 2013 (Pub. 
L. 113-29, approved August 9, 2013) and the Housing and Economic 
Recovery Act of 2008 (Pub. L. 110-289, approved July 30, 2008).
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B. Executive Order 13891 on Promoting the Rule of Law Through Improved 
Agency Guidance Documents

    On October 9, 2019 (84 FR 55235), the President issued E.O. 13891, 
``Promoting the Rule of Law Through Improved Agency Guidance 
Documents.'' E.O. 13891 recognizes that the Administrative Procedure 
Act (5 U.S.C. 551-559) (APA) exempts from the notice and comment 
requirements for rule making ``interpretive rules, general statements 
of policy, or rules of agency organization, procedure or practice,'' 
except when required by statute except when it is required by statute. 
5 U.S.C. 553(b). E.O. 13891 provides, however, that agencies have 
sometimes used this authority to regulate the public without following 
the notice and comment rulemaking procedures of the APA. As a result, 
E.O. 13891 reaffirms Executive Branch policy that, consistent with 
applicable law and except as authorized by law or incorporated into a 
contract, Federal agencies treat guidance documents as non-binding both 
in law and practice.
    To further this policy, E.O. 13891 requires that each Federal 
agency take certain actions to ensure the transparent availability and 
use of guidance documents; to treat guidance documents as non-binding 
in law and practice, to the extent consistent with applicable law; and 
to take public input into account when appropriate in formulating or 
modifying significant guidance documents. Pursuant to section 6 of E.O. 
13891, the Office of Management and Budget (OMB), Office of Information 
and Regulatory Affairs (OIRA) on October 31, 2019, issued memorandum M-
20-02 entitled, ``Guidance Implementing Executive Order 13891, Titled 
`Promoting the Rule of Law Through Improved Agency Guidance Documents' 
'' (OMB Guidance) \2\ instructing Federal agencies regarding compliance 
with requirements of E.O. 13891. Among other things, E.O. 13891 
requires that Federal agencies make their guidance documents available 
at a single, searchable, indexed website, and that the website include 
a statement that guidance documents lack the force and effect of law, 
except as authorized by law or as incorporated into a contract. Federal 
agencies must also review their guidance documents, rescind guidance 
documents that it determines should no longer be in effect, and inform 
the public of these actions by Federal Register notice.
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    \2\ OMB memorandum M-20-02 of October 31, 2019, is available at 
https://www.whitehouse.gov/wp-content/uploads/2019/10/M-20-02-Guidance-Memo.pdf.
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    Of significance to this interim rule, E.O. 13891 requires that each 
Federal agency codify procedures for issuing guidance documents by 
amending an existing regulation or adopting a new regulation, pursuant 
to the OMB Guidance. E.O. 13891 and the OMB Guidance require that the 
agency regulation on guidance incorporate specific elements. These 
elements include:
     Requiring that each guidance document clearly state that 
it does not bind the public, except as authorized by law or as 
incorporated into a contract;
     Establishing procedures for the public to petition for 
withdrawal or modification of a particular guidance document; and
     Establishing procedures for the issuance of significant 
guidance documents unless the OIRA Administrator and the agency agree 
that exigency, safety, health, or other compelling cause warrants an 
exemption from some or all of requirements. These procedures include: 
Affording the public not less than 30 days for the submission of 
comments, unless the agency for good cause finds that notice and public 
comment thereon are impracticable, unnecessary, or contrary to the 
public interest; requiring the approval of an agency head or component 
head appointed by the President; and requiring OIRA review of the 
guidance under E.O. 12866 (Regulatory Planning and Review).
    Significant guidance documents must also comply with the applicable 
requirements for regulations or rules, including significant regulatory 
actions, set forth in Executive Orders 12866, 13563 (Improving 
Regulation and Regulatory Review), 13609 (Promoting International 
Regulatory Cooperation), 13771 (Reducing Regulation and Controlling 
Regulatory Costs), and 13777 (Enforcing the Regulatory Reform Agenda).

II. This Interim Rule

    This interim rule implements E.O. 13891 by establishing a new part 
11 in title 24, CFR, that sets forth the Department's policy and 
procedures for issuing guidance documents. Part 11 would be codified in 
Subtitle A of HUD's title of the CFR and establish requirements that 
generally apply to all HUD programs. It supplements part 10 in the same 
title which establishes the policy and procedures for promulgating 
regulations.
    Section 11.1 states HUD's policy regarding the issuance of guidance 
documents and reflects the requirements of E.O. 13891. HUD's policy 
regarding the issuance of guidance documents is based on three core 
principles. First, as reflected in Sec.  11.1(a), HUD provides that 
guidance documents will be treated as non-binding and will not impose 
on members of the public new requirements that have the force and 
effect of law, except as authorized by law or regulation, or as 
incorporated into a contract. Consistent with this principle, this 
paragraph provides that the each of the Department's guidance documents 
will clearly state that it does not have the force and effect of law, 
except as authorized by law or as incorporated into a contract.

[[Page 71539]]

    Second, Sec.  11.1(b) reflects the principle of seeking public 
participation in the development of significant guidance documents. 
Toward this goal, paragraph (b) of this section provides that HUD will 
seek public participation in the development of significant guidance 
documents and will afford the public not less than thirty days for the 
submission of comments, except when the Department finds for good cause 
that notice and public comment are impracticable, unnecessary, or 
contrary to the public interest. HUD may use various methods to obtain 
public participation including by publishing a notice in the Federal 
Register announcing the availability of significant guidance documents 
for comment.
    Finally, Sec.  11.1(c) reflects the principle that agency guidance 
should be transparent and made readily available to the public. Toward 
this end, paragraph (c) of this section provides that HUD will make 
available guidance documents on a single, searchable, indexed public 
website. Section 11.1(c) makes clear that guidance documents not posted 
on the Department's guidance website shall no longer have effect and 
shall not be cited except to establish historical fact. Finally, Sec.  
11.1(c) provides that in furtherance of its policy of transparency and 
encouraging public participation, the Department is establishing a 
procedure at Sec.  11.6 for the public to request the withdrawal or 
modification of a particular guidance document.
    Section 11.2 of the interim rule provides definitions of ``guidance 
document,'' ``guidance portal,'' ``OIRA,'' and ``significant guidance 
document.'' ``Guidance document'' is defined as a statement of general 
applicability, designed to shape or intended to have future effect on 
the behavior of regulated parties, that sets forth a policy on a 
statutory, regulatory, or technical issue, or an interpretation of a 
statute or regulation. Consistent with E.O. 13891, the definition lists 
several types of documents that are not guidance documents. These 
include rules promulgated under section 553 of the APA (5 U.S.C. 553) 
(APA), rules exempt from rulemaking requirements under the APA, notices 
of funding availability, grant agreements, cooperative agreements, or 
contracts entered into with program participants in accordance with 
statutory and regulatory requirements, agency adjudicatory decisions, 
internal guidance that is not intended to have a substantial effect on 
regulated parties, legal opinions, legal briefs, and court filings, 
notices regarding particular locations and facilities, research papers 
and studies, and correspondence and communications with individual 
persons or entities not intended to set policy, including 
communications regarding program administration, enforcement actions, 
and notices of violation, or Congressional correspondence. These 
issuances are not statements of ``general applicability, intended to 
have future effect on the behavior of regulated parties,'' as stated in 
the E.O. Rather, these issuances only affect single entities based on 
their specific circumstances. As such, they are not within the 
definition of ``guidance document'' in the E.O.
    ``Guidance portal'' is defined at Sec.  11.2(b) as the single, 
publicly accessible, searchable website where HUD posts or links to all 
guidance documents that are in effect. ``OIRA'' is defined at Sec.  
11.2(c) to mean the Office of Information and Regulatory Affairs at 
OMB. ``Significant guidance document,'' is defined at Sec.  11.2(d), 
and reflects section 3(f) of E.O. 12866. Specifically, significant 
guidance documents mean guidance documents that have an annual effect 
on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or state, 
local, or tribal governments or communities; create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or raise novel legal or policy issues arising out 
of legal mandates, the President's priorities, or the principles set 
forth in E.O. 12866. Consistent with E.O. 12866 and E.O. 13891, HUD 
will make an initial determination of whether a guidance document is 
significant and OIRA will make a final determination.
    Section 11.3 describes the applicability of part 11. It provides 
that part 11 applies to the issuance of guidance documents covered by 
E.O. 13891. It also provides that HUD and OIRA may jointly determine 
that a guidance document is exempt from some or all of the requirements 
of this part due to exigency, safety, health, or other compelling 
cause. It should be noted that there are cases where specific aspects 
of part 11 may not apply. For example, this rule contains the same good 
cause exemption from notice and comment as exists for regulations under 
section 553(b) of the Administrative Procedure Act.
    Section 11.3(c) also reflects the exemption provided by E.O. 13891 
for guidance documents ``as authorized by law[\3\] or as incorporated 
into a contract.'' For example, this part does not apply to handbooks 
and mortgagee letters issued by the Federal Housing Administration 
(FHA). HUD's FHA program provides mortgage insurance on loans made by 
FHA-approved lenders. Participants in HUD's insured mortgage programs 
have a contractual relationship with HUD. HUD has no obligation to 
insure any mortgage, and so can set the terms and conditions under 
which a mortgage is insured. A mortgagee likewise has no obligation to 
insure a mortgage with FHA; a mortgagee who chooses to accept the 
conditions and participate in the mortgage insurance program assents to 
these terms and conditions. In addition, the participation of 
mortgagee's in FHA programs is governed by statutes such as the 
National Housing Act and HUD's regulations. Mortgagee letters either 
reflect these statutes and regulations or are essentially contractual 
in nature.
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    \3\ Examples of publications authorized by law include Fair 
Market Rents, under Section 8(c)(1) of the United States Housing Act 
of 1937 (USHA), as amended by the Housing Opportunities Through 
Modernization Act of 2016 (HOTMA); Qualified Census Tract and 
Difficult Development Area designations, under Internal Revenue Code 
(IRC) Section 42, as enacted by the Tax Reform Act of 1986; Annual 
Adjustment Factors under the United States Housing Act of 1937; 
Section 8 Annual Inflation Factors for Public Housing under HUD's 
annual appropriations acts.
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    The exception for guidance documents ``as authorized by law or as 
incorporated into a contract'' also applies to Participant Memoranda 
and Multiclass Participant Memoranda issued by the Government National 
Mortgage Association (Ginnie Mae). Ginnie Mae, through its Mortgage-
Backed Securities (MBS) Programs, guarantees securities that are backed 
by pools of mortgages and issued by mortgage lenders (Issuers) approved 
by Ginnie Mae. Participant Memoranda announce policy and Mortgage 
Backed Securities Guide changes accessed by Issuers, Document 
Custodians and other participants in Ginnie Mae programs. They are part 
of the agreement to participate in Ginnie Mae programs, which is 
voluntary, and so essentially contractual requirements.
    Section 11.4(a) requires that all guidance documents be published 
and posted on HUD's guidance portal unless it is guidance under Sec.  
11.3(c) or the requirement is waived under the procedures in Sec.  
11.4(c). Section 11.4(b) also requires that each document be in a 
searchable, machine readable format and have certain information, 
including

[[Page 71540]]

a title, an identification of any previous document that it revises or 
replaces, the issuing office, the date of issuance, document 
identification number, the applicable legal authority or authorities, a 
brief summary, the persons to whom the guidance applies, and a 
statement that the guidance document lacks the force and effect of 
binding law, except as authorized by statute, regulation or as 
incorporated into a contract. For significant guidance documents, Sec.  
11.4(b)(9) provides that HUD's guidance documents will comply with the 
applicable requirement for regulations or rules including significant 
regulatory actions, set forth in Executive Orders 12866, 13563, 
(Improving Regulation and Regulatory Review, 13609 (Promoting 
International Regulatory Cooperation), 13771 (Reducing Regulation and 
Controlling Regulatory Costs), and 13777 (Enforcing the Regulatory 
Reform Agenda).
    Section 11.4(c) provides that a senior policy official may request 
a waiver from posting a document or category of documents on the HUD 
guidance portal. Such a request will be submitted to OIRA for review.
    Section 11.6 sets forth the procedure for members of the public to 
request the withdrawal or removal of a particular guidance document. 
Under this section, any member of the public can direct their petition 
to the applicable program office head with a copy to the Office of 
General Counsel, setting forth all data and arguments available to the 
petitioner supporting the action sought. Under paragraph (c) of this 
section, the Department shall respond to all petitions for the removal 
or modification of guidance documents no later than 90 days after 
receipt of the petitioner's request.
    Section 11.8 provides for public participation in the formulation 
of significant guidance documents through at least a 30-day public 
notice and comment period. Paragraph (a) of this section provides that 
OIRA, consistent with E.O. 12866 and with the advice of the Department, 
shall identify or determine which guidance documents are significant. 
Section 11.8 provides that the Department may employ various methods of 
providing for public participation in the development of significant 
guidance documents and may publish a notice in the Federal Register 
announcing the availability of a significant guidance document. This 
section also outlines certain actions the Department will take before 
the final issuance of a significant guidance document, including 
responding to major issues raised in the comments, OIRA review, and 
non-delegable approval by a Presidentially appointed official.

III. Justification for Interim Rulemaking

    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 comment procedure is ``impracticable, 
unnecessary, or contrary to the public interest.''
    The Department finds that good cause exists to publish this interim 
rule. This interim rule implements E.O. 13891, which directs that HUD 
take certain actions to ensure the transparent availability and use of 
guidance documents; to treat guidance documents as non-binding in law 
and practice, to the extent consistent with applicable law and except 
authorized by law or incorporated into a contract; to take public input 
into account when appropriate in formulating or modifying significant 
guidance documents and provide a procedure for the public to petition 
for the withdrawal or modification of a particular guidance document. 
While this interim rule does exercise some discretion on the part of 
HUD, the exercise relies on E.O. 13891's mandates for HUD to initiate 
actions on matters of internal procedure. Further, the internal 
procedures established by this rule do not impose on members of the 
public new requirements that have the force and effect of law.
    Although HUD has determined that good cause exists to publish this 
rule for effect without prior solicitation of public comment, HUD 
recognizes the value and importance of public input in the rulemaking 
process. Accordingly, HUD is issuing these regulatory amendments on an 
interim basis and providing a 60-day public comment period.

IV. Findings and Certifications

Regulatory Review--Executive Orders 12866 and 13563

    Under E.O. 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. E.O. 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.'' E.O. 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 interim rule has been determined not to be a ``significant 
regulatory action,'' under section 3(f) of E.O. 12866 and therefore was 
not reviewed by OMB. The Office of Information and Regulatory Affairs 
(OIRA) has designated this rule not as a major rule under the 
Congressional Review Act (5 U.S.C. 801 et seq.).

Environmental Impact

    The interim 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 
interim rule is categorically excluded from environmental review under 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

Unfunded Mandates Reform Act

    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 does not impose a 
Federal mandate on any state, local, or tribal government, or on the 
private sector, within the meaning of UMRA.

Regulatory Flexibility Act

    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 rule requires HUD to follow certain procedures in issuing guidance 
documents. These procedures include establishing a single agency 
website where the public can find all HUD guidance in effect; OMB 
review to determine whether guidance is significant, and OMB review of

[[Page 71541]]

significant guidance; public comment on significant guidance; and a 
procedure for the public to request withdrawal or modification of a 
guidance document. These revisions impose no significant economic 
impact on a substantial number of small entities. Therefore, the 
undersigned certifies that this rule will not have a significant impact 
on a substantial number of small entities.
    Notwithstanding HUD's view that this 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 rule that will meet HUD's objectives as described 
in this preamble.

Executive Order 13132, Federalism

    E.O. 13132 (entitled ``Federalism'') prohibits an agency from 
publishing any rule that has federalism implications if the rule 
either: (1) Imposes substantial direct compliance costs on State and 
local governments and is not required by statute, or (2) preempts State 
law, unless the agency meets the consultation and funding requirements 
of Section 6 of the E.O. This interim 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 E.O.

List of Subjects in 24 CFR Part 11

    Administrative practice and procedure.

    For the reasons described in the preamble, the Department of 
Housing and Urban Development adds 24 CFR part 11 as set forth below:

PART 11--GUIDANCE DOCUMENTS: POLICY AND PROCEDURES

Sec.
11.1 Policy.
11.2 Definitions.
11.3 Applicability.
11.4 Published guidance documents.
11.6 Withdrawal or modification of documents.
11.8 Issuance of significant guidance documents.

    Authority:  42 U.S.C. 3535(d); E.O. 13891, 84 FR 55235, October 
9, 2019.


Sec.  11.1   Policy.

    (a) Non-binding effect of guidance documents. The Department of 
Housing and Urban Development issues guidance documents that help 
explain its programs and policies or communicate other important 
information to members of the public. These statements of general 
applicability include interpreting existing law and regulation, 
clarifying existing program obligations, or otherwise providing 
information that assists members of the public subject to HUD's 
statutes and regulations comply with statutory and regulatory reporting 
requirements. The Department's policy is that guidance documents issued 
by HUD shall be treated as non-binding and will not impose on members 
of the public new requirements that have the force and effect of law, 
except as authorized by statue or regulation or incorporated into a 
contract. Consistent with this policy, each of the Department's 
guidance documents will clearly state that it does not have the force 
and effect of law, except as authorized by law or as incorporated into 
a contract.
    (b) Public participation in development of significant guidance. 
The Department recognizes the benefit of providing members of the 
public the opportunity to participate in the development of significant 
guidance documents, as defined in Sec.  11.2(d). Public participation 
can provide the Department more comprehensive data, facts, and 
information on which to base its decisions. It is, therefore, the 
policy of the Department that its significant guidance documents will 
afford the public not less than thirty days for the submission of 
comments, except when the Department finds for good cause that notice 
and public comment are impracticable, unnecessary, or contrary to the 
public interest (and incorporates such finding and a brief statement of 
the reasons into the guidance document). The Department may employ 
various methods of providing public participation, including publishing 
a request for information or notice in the Federal Register inviting 
public comments or publishing a request on its website.
    (c) Single searchable website; procedure to request withdrawal. The 
Department is committed to facilitating access to guidance documents by 
regulated entities and the public. It is, therefore, the policy of the 
Department to make available a comprehensive set of guidance documents 
on a single, searchable, indexed website that contains or links to all 
guidance documents currently in effect. Guidance documents not posted 
on the Department's guidance website shall no longer have effect and 
shall not be cited except to establish historical fact. In addition, 
the Department establishes a procedure, as provided in Sec.  11.6, for 
the public to request the withdrawal or modification of a particular 
guidance document.


Sec.  11.2   Definitions.

    (a) Guidance document means a statement of general applicability, 
designed to shape or intended to have future effect on the behavior of 
regulated parties, that sets forth a policy on a statutory, regulatory, 
or technical issue, or an interpretation of a statute or regulation. 
HUD guidance documents include, but are not limited to, handbooks, 
policy statements, policy directives, notices of general applicability, 
compliance documents, bulletins, documents addressing frequently asked 
questions, and other direct notices issued by HUD program offices, but 
do not include:
    (1) Rules promulgated pursuant to notice and comment under section 
553 of title 5, United States Code (as codified at 24 CFR part 10), or 
similar statutory provisions;
    (2) Rules exempt from rulemaking requirements under section 553(a) 
of title 5, United States Code;
    (3) Rules of agency organization, procedure, or practice, provided 
such rules do not alter substantive obligations for parties outside the 
Department;
    (4) Decisions of agency adjudications under section 554 of title 5, 
United States Code, or similar statutory provisions;
    (5) Internal guidance directed to HUD or other agencies that is not 
intended to have substantial future effect on the substantive behavior 
of regulated parties;
    (6) Internal executive branch legal advice or legal opinions 
addressed to executive branch officials, or directed to particular 
parties about circumstance-specific questions;
    (7) Legal briefs, charges, and other court filings intended to 
persuade a court, or administrative or arbitral authority;
    (8) Notices regarding particular locations or facilities;
    (9) Research papers and studies;
    (10) Notices of Funding Availability, and correspondence and 
communications with individual persons or entities not intended to set 
general policy, including grant agreements with individual program 
participants and other communications regarding program administration, 
enforcement actions, and notices of violation, or congressional 
correspondence.
    (b) Guidance portal means the single, publicly accessible, 
searchable website where HUD posts or links to all guidance documents 
that are in effect.
    (c) OIRA means the Office of Information and Regulatory Affairs at 
the Office of Management and Budget.

[[Page 71542]]

    (d) Significant guidance document means a guidance document that 
may reasonably be anticipated to:
    (1) Lead to an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles of Executive 
Order 12866, ``Regulatory Planning and Review.''


Sec.  11.3   Applicability.

    (a) This part governs HUD's issuance of guidance documents.
    (b) HUD and the Administrator of OIRA may jointly determine that a 
guidance document is exempt from some or all of the requirements of 
this part for exigency, safety, health, or other compelling cause.
    (c) This part is not applicable to any guidance document that is 
authorized by law or contemplated by or incorporated into a contract, 
including:
    (1) Handbooks and mortgagee letters issued by the Federal Housing 
Administration; and
    (2) All Participant Memoranda and Multiclass Participant Memoranda 
issued by the Government National Mortgage Association.


Sec.  11.4   Published guidance documents.

    (a) HUD makes available to the public a comprehensive set of 
guidance documents through a guidance portal that can be accessed from 
the Department's public website. Unless exempt pursuant to paragraph 
(c) of Sec.  11.3 or a waiver is granted under paragraph (c) of this 
section, HUD will publish or link to each guidance document that is in 
effect on its guidance portal.
    (b) Each guidance document issued pursuant to this part shall:
    (1) Be in a user-searchable, machine readable format;
    (2) Provide the document title, and identify what, if any, previous 
document the new guidance document revises or replaces;
    (3) Identify the issuing office or division;
    (4) Indicate the date of issuance and the unique document 
identification number;
    (5) Identify the applicable legal authority or authorities for 
issuance of the guidance, and provide a brief summary of the subject 
matter the document covers;
    (6) Describe the document contents as guidance, pursuant to Sec.  
11.2(a);
    (7) Identify the activities to which and the persons to whom the 
document applies;
    (8) State that the guidance document, if meeting the definition 
thereof, lacks the force and effect of binding law; and
    (9) For significant guidance documents, comply with the applicable 
requirement for regulations or rules including significant regulatory 
actions, set forth in Executive Orders 12866, 13563 (Improving 
Regulation and Regulatory Review, 13609 (Promoting International 
Regulatory Cooperation), 13771 (Reducing Regulation and Controlling 
Regulatory Costs), and 13777 (Enforcing the Regulatory Reform Agenda).
    (c) A senior policy official may request a waiver of the 
requirement to post a guidance document or a category of guidance 
documents. Such a request should be submitted through OIRA for review. 
A request for a waiver should clearly explain the purpose of the 
document(s) and why making the document(s) publicly available on an 
agency website would cause specific harm or otherwise interfere with 
the agency's mission.


Sec.  11.6   Removal or modification of documents.

    (a) The Department may rescind, remove from its public website or 
modify published guidance documents on its own initiative, or in the 
response to the petition of any interested person.
    (b) Public petition. Any interested person may petition the 
applicable program office head for the modification or withdrawal of a 
guidance document. Each petition shall:
    (1) Be directed to the applicable program office head with a copy 
to the Office of General Counsel, Office of Legislation and 
Regulations, Department of Housing and Urban Development, Washington, 
DC 20410;
    (2) Identify with specificity the guidance document sought to be 
withdrawn or modified and, if applicable, set forth the text or 
substance of the interim modification;
    (3) Explain the interest of the petitioner in the action sought; 
and
    (4) Set forth any data and arguments available to the petitioner in 
support of the action sought.
    (c) The Department shall respond to all petitions for the removal 
or modification of guidance documents no later than 90 days after 
receipt of the petitioner's request unless the Secretary makes an 
extension for good cause or consideration is deferred pursuant to 
paragraph (e) of this section.
    (d) The Department will post a copy of requests for withdrawal or 
modification and responses on its website.
    (e) The Department will consolidate multiple requests for the same 
guidance document and need not consider a single guidance document more 
than once each calendar year.
    (f) If the program office head or the person with delegated 
authority finds that the petition contains substantial justification, 
the guidance document will be withdrawn or, consistent with the 
requirements of this part, modified as appropriate. If the program 
office head or person with delegated authority finds that the petition 
does not contain substantial justification, or based on other 
considerations such official deems relevant, the petition will be 
denied by letter or other notice, with a brief statement of the ground 
for denial.


Sec.  11.8  Issuance of significant guidance documents.

    (a) Determination of significance. Consistent with E.O. 12866 and 
E.O. 13891, HUD will make an initial determination of significance and 
OIRA, with the advice of the Department, will make a final 
determination.
    (b) Notice of a significant guidance document. Except as provided 
by paragraph (d) of this section, HUD will afford the public not less 
than thirty days for the submission of comments prior to issuing a 
significant guidance document and will publicly respond to major 
categories of, or the most significant, concerns raised in comments. 
The Department may employ various methods of providing for public 
participation in the development of a significant guidance documents 
including publishing a notice in the Federal Register announcing the 
availability of a significant guidance document which includes:
    (1) The substance or terms of the interim guidance or a description 
of the subject matter and issues involved;
    (2) Direction on how to access the draft guidance document 
available on the Department's website; and
    (3) The citation to the statutory provision or regulation (in Code 
of Federal Regulations format) to which the guidance document applies 
or which it interprets.
    (c) Each draft guidance document announced in the Federal Register 
shall be available on the HUD website,

[[Page 71543]]

concurrent with the publication of public notice and comment period.
    (d) Exception. The Department may omit the public participation 
requirement of this section if it for good cause determines that public 
notice and comment is impracticable, unnecessary, or contrary to the 
public interest. The Department shall incorporate a brief statement of 
the reasons for its determination to omit public participation into its 
guidance document.
    (e) Review and approval. (1) Unless excepted under paragraph (c) of 
this section, the issuance of a significant guidance document will 
follow review by OIRA under Executive Order 12866, which may run in 
whole or part, concurrently with the public comment process in 
paragraph (a) or this section.
    (2) Approval of significant guidance documents shall be by 
signature of the Secretary, Deputy Secretary, General Counsel, or 
Assistant Secretary or equivalent, or by an official who is serving in 
an acting capacity in any of the foregoing positions.

Benjamin S. Carson, Sr.,
Secretary.
[FR Doc. 2020-23982 Filed 11-9-20; 8:45 am]
BILLING CODE 4210-67-P