Rule2024-12777
Certification of Tribal Housing Counselors
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 12, 2024
Effective
July 12, 2024
Issuing agencies
Housing and Urban Development Department
Abstract
HUD's Housing Counseling Program provides counseling to individuals seeking information about financing, maintaining, renting, or owning a home. Established by the Dodd-Frank Wall Street Reform and Consumer Protection Act, entities and individual counselors that participate in the Housing Counseling Program are required to be certified by HUD as competent to provide counseling services. In 2016, HUD implemented such housing counselor certification requirements for most HUD programs but agreed to conduct consultation with Tribes before implementing them for Tribes. On January 26, 2023, HUD published a proposed rule that provides an alternative regulatory standard for the counselor certification that accounts for the unique status of Tribal land and housing programs in Indian country and recognizes the importance of Tribal expertise. After consulting with Tribes and considering public comments received in response to the proposed rule, this final rule adopts the proposed rule with minor changes.
Full Text
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[Federal Register Volume 89, Number 114 (Wednesday, June 12, 2024)]
[Rules and Regulations]
[Pages 49802-49808]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-12777]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 214, 1000, and 1003
[Docket No. FR-6322-F-02]
RIN 2502-AJ64
Certification of Tribal Housing Counselors
AGENCY: Office of the Assistant Secretary for Housing--Federal Housing
Commissioner, U.S. Department of Housing and Urban Development (HUD);
Office of the Assistant Secretary for Public and Indian Housing, HUD.
ACTION: Final rule.
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SUMMARY: HUD's Housing Counseling Program provides counseling to
individuals seeking information about financing, maintaining, renting,
or owning a home. Established by the Dodd-Frank Wall Street Reform and
Consumer Protection Act, entities and individual counselors that
participate in the Housing Counseling Program are required to be
certified by HUD as competent to provide counseling services. In 2016,
HUD implemented such housing counselor certification requirements for
most HUD programs but agreed to conduct consultation with Tribes before
implementing them for Tribes. On January 26, 2023, HUD published a
proposed rule that provides an alternative regulatory standard for the
counselor certification that accounts for the unique status of Tribal
land and housing programs in Indian country and recognizes the
importance of Tribal expertise. After consulting with Tribes and
considering public comments received in response to the proposed rule,
this final rule adopts the proposed rule with minor changes.
DATES: Effective July 12, 2024.
FOR FURTHER INFORMATION CONTACT: David Valdez, Office of Housing
Counseling, Office of Housing, Department of Housing and Urban
Development, 1331 Lamar St. Suite 550, Houston, TX 77002; telephone
number 713-718-3178 (this is not a toll-free number). HUD welcomes and
is prepared to receive calls from individuals who are deaf or hard of
hearing, as well as individuals with speech or communication
disabilities. To learn more about how to make an accessible telephone
call, please visit <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>.
SUPPLEMENTARY INFORMATION:
I. Background
Established by the Dodd-Frank Wall Street Reform and Consumer
Protection Act (Pub. L. 111-203, 124 Stat. 1376, approved July 21,
2010) (Dodd-Frank), HUD's Office of Housing Counseling (OHC) provides
support to a nation-wide network of HUD-certified counseling agencies
and State Housing Finance Agencies that provide counseling to
individuals seeking information about financing, maintaining, renting,
or owning a home. In addition to establishing the OHC, Dodd-Frank
directed HUD to issue regulations necessary to carry out the testing
and certification of housing counselors in HUD programs. On December
14, 2016, HUD published a final rule implementing these requirements
for most HUD programs (81 FR 90632). In recognition of HUD's
government-to-government relationship with Tribal governments, and
HUD's Tribal Consultation policy, HUD conducted Tribal consultation
before implementing requirements for Tribes, Tribally designated
housing entities (TDHEs), and other Tribal entities. On December 18,
2020, HUD published a Dear Tribal Leader Letter to inform Tribal
leaders about the Housing Counselor Certification Final Rule and that
the Department would be soliciting their feedback through Tribal
consultation.\1\
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\1\ Available at: <a href="https://www.hud.gov/sites/dfiles/PIH/documents/DTL12.17.20_Housing_Counseling.pdf">https://www.hud.gov/sites/dfiles/PIH/documents/DTL12.17.20_Housing_Counseling.pdf</a>.
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Subsequently, HUD hosted two virtual Tribal consultation sessions
and six listening sessions to gather input on the potential
implications of the Tribal Housing Certification requirements. HUD then
published a proposed rule implementing testing and certification
requirements for housing counselors for employees of Tribes, TDHEs, and
other Tribal entities conducting housing counseling required or
provided in connection with the Indian Housing Block Grant (IHBG) and
Indian Community Development Block Grant (ICDBG) programs on January
26, 2023 (88 FR 4923) (the proposed rule).
The proposed rule proposed codifying a housing counselor
certification requirement by adding a new subpart F to 24 CFR part 214
that would apply only for the IHBG and ICDBG programs. To provide
counseling for those programs, an individual could become a ``HUD-
certified housing counselor'' by working for a participating agency and
meeting all requirements of part 214, including passing a housing
counselor certification examination under Sec. 214.103(n) or by
working for an Indian Tribe, TDHE, or other Tribal entity, and passing
a housing counselor certification exam under the new Sec. 214.600(c).
This new Tribal certification exam would consider the unique status of
Tribal trust land, mortgaging Tribal trust land, and account for the
distinct framework of nondiscrimination requirements as they apply to
Tribes and Tribal recipients of IHBG and ICDBG funds at 24 CFR 1000.12
and 1003.601.
II. This Final Rule
After considering comments received from the public through the
Federal Register as well as through consultation with Tribes during
three consultation sessions and six listening sessions, HUD promulgates
this final rule. The final rule adopts the proposed rule with three
minor changes. First, instead of revising the definition of HUD
certified housing counselor in 24 CFR 214.3, HUD is adding a definition
for HUD-certified Tribal housing counselor. This change is
[[Page 49803]]
being made to clearly distinguish between the two types of counselors
and does not alter the substantive requirements for certification
approval. Second, HUD is clarifying in 24 CFR 214.600(d) that an Indian
Tribe, TDHE, or other Tribal entity must be a participating agency in
order for an individual working for one, who also meets the
requirements under 24 CFR 214.103(n), to provide housing counseling in
connection with programs other than IHBG and ICDBG. Third, HUD is
adding paragraph (e) to 24 CFR 214.600 to establish a 4-year transition
period to allow Tribal grantees sufficient time to ensure that housing
counselors can be certified while also establishing the alternative
Tribal regulatory scheme previously outlined in the proposed rule. HUD
appreciates the public comments received in response to its January 26,
2023, proposed rule, thanks all Tribal stakeholders for their
invaluable feedback during the rulemaking process, and looks forward to
engaging more as HUD works to develop a Tribal certification exam.
III. Public Comments
HUD received 16 distinct comments from Tribes, individuals, housing
counseling providers, Indian Housing Authorities, and advocacy groups
through the Federal Register as well as additional comments through the
third Tribal consultation. This section includes a summary of the
significant issues raised by the public comments that HUD received in
response to its proposed rule and through the third Tribal
Consultation.
Support for the Proposed Rule
Several commenters provided general support for the proposed rule
and noted that it respected Tribal sovereignty and accounted for the
unique nature of Tribes. One commenter noted that housing is a
significant need in Tribal communities and housing counseling is often
unavailable to Tribal members. Some commenters supported HUD for
working with Tribal officials and including their input. One commenter
noted that they appreciated HUD's approach as Tribal consultation is a
prerequisite for implementing any rules that affect Tribal programs or
communities.
Several commenters supported specific aspects of the proposed rule.
One commenter noted that the proposed rule simplified the eligibility
and certification process. Another commenter supported HUD's proposal
to allow TDHEs to participate in HUD's Housing Counseling Program.
Commenters stated the proposed rule would make it more feasible for
TDHEs to comply with the requirements than those that apply more
broadly in HUD's counseling regulations.
Several commenters in the third Tribal consultation suggested that
HUD convene a Tribal advisory committee to oversee the implementation
of the rule.
HUD Response: HUD appreciates the commenters' support and feedback.
This final rule provides an alternative regulatory standard that
complies with the statutory requirements of Dodd-Frank and recognizes
the unique status of Tribal land and housing programs in Indian
country.
HUD agrees with the commenters that recommended working with a
Tribal advisory committee to advise HUD on the implementation of this
final rule. In this case, HUD intends to work with two existing federal
advisory committees, HUD's Tribal Intergovernmental Advisory Committee
and the Housing Counseling Federal Advisory Committee (HCFAC) in
soliciting advice regarding implementing this rule.
Opposition to the Proposed Rule
Several commenters stated that the proposed rule is not deferential
to the Tribal right of self-determination and does not recognize Tribal
sovereignty and the unique challenges Tribes face. Commenters stated
that the proposed rule should allow Tribes to account for their
differing cultures, economic conditions, customs, resources, and
geography. Some commenters also stated that they did not feel the
proposed rule was responsive enough to the feedback provided during
listening sessions and encouraged further consultation between HUD and
Tribal communities to ensure accessible, culturally-informed, and
relevant housing counseling services. Commenters recommended that HUD
engage more with Tribes in designing a process and a program that
reimagines HUD's current Housing Counseling Program to better recognize
Tribal expertise and acknowledge Tribal self-determination. One
commenter stated that the Native American Housing Assistance and Self-
Determination Act of 1996, as amended (NAHASDA) (25 U.S.C. 4101),
already allows IHBG grant funds to be used to pay for housing
counseling services and does not require an examination process.
Another commenter noted that neither NAHASDA nor the ICDBG program
mandate housing counseling.
Commenters stated that the proposed rule may make it difficult for
Tribal entities to run housing programs and ultimately decrease access
to housing counseling. A commenter said Tribal housing counselors would
have to take and pass a rigorous examination with content that did not
include questions related to Tribal housing issues. Another commenter
stated that the proposed rule would undermine the decades of work put
in to improve Tribal counseling organizations and essentially nullify
the capacity that has been built. Some commenters stated that the
proposed rule would have the effect of diminishing the services
provided to Tribal members, as it could limit the ability of Tribes to
use the IHBG program, or other programs that have a counseling
requirement. Commenters noted the proposed rule could be especially
burdensome for small and rural Tribal entities and reduce access to
housing counseling in these communities. One commenter noted the costs
would be passed on to homebuyers. Another commenter noted the proposed
rule did not take into consideration ways to provide more housing
counseling services and only focused on additional regulatory
compliance.
One commenter recommended an abbreviated version of the Housing
Counseling Plan be embedded in the NAHADSA Annual Indian Housing Plan.
Another commenter suggested HUD allow existing staff of Tribes, TDHEs
and other Tribal entities to constitute a housing counseling
organization in Sec. 214.600. One commenter noted that Tribes already
have housing counseling programs that better fit their needs.
HUD Response: HUD recognizes the unique challenges in Indian
Country and understands that commenters have concerns about how this
new requirement will be implemented. HUD is required to implement Dodd-
Frank and the statutory requirement that counseling provided under, or
in connection with, IHBG and ICDBG be carried out by certified
counselors. However, in doing so, HUD is committed to implementing the
counselor certification for IHBG and ICDBG in a manner that respects
Tribal sovereignty and the right of self-determination and which
addresses the substantial feedback provided by Tribes.
HUD, through a contractor, will develop the Tribal housing
counselor certification training, online study guide, and examination
and to host the website. HUD will ensure the exam content is
appropriately tailored while considering and balancing compliance with
statutory requirements, the unique status of trust land, mortgaging
tribal trust land, and respect for Tribal sovereignty and self-
determination.
[[Page 49804]]
When developing the examination, HUD may seek to engage with Tribes,
TDHEs and other Tribal entities to gather their input in designing an
exam that recognizes Tribal expertise and acknowledges Tribal self-
determination.
Through this rule, HUD addressed the concern that the rule could be
especially burdensome for small and rural Tribal entities.
Specifically, HUD is establishing an alternative regulatory standard
for Tribes and will allow employees of Indian Tribes, TDHEs, and other
Tribal entities to become certified housing counselors if they pass the
certification examination under Sec. 214.600(c) without the
requirement that they also work for an approved housing counseling
agency. To further minimize burden for all Tribes, including small and
rural Tribal entities, HUD will also provide access to existing free
study material and free study material that accounts for any tailored
exam components that it develops in collaboration with Tribes, TDHEs,
and other Tribal entities.
Finally, HUD is establishing a 4-year transition period to ensure
that Tribes have enough lead time to ensure staff are properly prepared
to complete and pass the certification exam.
Through all these actions, it is HUD's hope that the result will be
the appropriate implementation of Dodd-Frank in a manner that considers
the unique status of Tribes and ensures that Tribes are able to get all
housing counselors certified in a timely manner.
Certification Exam
Several commenters proposed ways to make the proposed rule more
deferential to Tribes' unique needs. Commenters noted that Tribes,
TDHEs and Community Development Funding Institutions (CDFI) have
already created housing counseling programs that fit the unique needs
of Tribes. Commenters suggested that HUD should recognize
certifications from Native American housing counselor certification
curricula that many Tribal housing entities already use. Some
commenters suggested that HUD incorporate existing curricula or adopt
certifications from the National American Indian Housing Council
(NAIHC), NeighborWorks, Oweesta, etc. Several commenters suggested in
the third Tribal consultation that HUD use existing curricula and
examinations, including Pathways Home: A Native Homeownership Guide, to
satisfy the statutory requirement for a certification examination that
addresses the six core competency areas.
Several commenters suggested HUD establish an advisory committee
comprised of representatives from Tribal entities and stakeholders who
could advise HUD on how to devise culturally relevant criteria and exam
content for Tribal-specific HUD counselor certification requirements.
Some commenters expressed concern about applying the current housing
counselor standards to Tribal entities. Some commenters requested HUD
allow Tribes to determine the content for inclusion in the relevant
exam curriculum. One commenter noted that if HUD created a
certification process rooted in Tribal expertise and Tribal self-
determination, HUD could expand this certification process for all HUD-
funded Tribal programs.
Some commenters requested HUD change certification requirements
because staff in Tribal governments are often divided between ownership
and rental programs and may have difficulty passing the exam.
Commenters also asked HUD to adjust the certification requirements to
align more closely with the rental counseling needs of TDHEs, Tribes,
and Tribal CDFIs. One commenter requested clarification about what the
``fair housing laws and rules'' competency requirement at Sec.
214.600(c)(1)(iv) will include in the certification exam based on the
limited application of certain Fair Housing requirements for Tribes and
Tribal grantees. Another commenter asked HUD what measures HUD is
taking to ensure certification covers the unique status of all Tribal
communities. Commenters also asked whether the certification standards
would be the same for TDHEs as other HUD-approved housing counseling
agencies.
One commenter proposed that the cost of certification should be
less than $100 and should be clearly disclosed by HUD.
One commenter in the third Tribal consultation expressed confusion
over the need for the Sec. 214.103(n) examination or the forthcoming
certification examination under Sec. 214.600(c) or both exams to be
certified to counsel within IHBG or ICDBG programs.
HUD Response: While commenters suggested HUD establish an advisory
committee comprised of representatives from Tribal entities and
stakeholders to advise HUD regarding designing culturally relevant
criteria and exam content for Tribal-specific HUD counselor
certification, HUD has decided against establishing such an advisory
committee. In reviewing this comment, HUD recognized that requirements
of the Federal Advisory Committee Act (5 U.S.C. Chapter 10) would limit
its ability to fully engage Tribes in the development of the
certification examination. Additionally, it has typically not been the
Department's procedure to establish an advisory committee for the
purpose suggested by the commenter and the Department has other means
of soliciting public input. As discussed in this preamble, HUD is fully
committed to soliciting the advice and recommendation of Tribes in the
development of the examination.
HUD recognizes the certification exam codified at Sec. 214.103(n)
does not assess knowledge of the unique property and administrative
requirements that apply to trust land and other restricted Tribal
lands. For example, the housing counselor certification exam codified
at Sec. 214.103(n) does not reflect the unique way that civil rights
requirements apply to Tribes and other Tribal grantees under HUD's IHBG
and ICDBG programs under 24 CFR 1000.12 and 1003.601. While there are
exemptions from certain fair housing and civil rights laws and
requirements for tribes and TDHEs when administering specific HUD
funds, individuals and families do have certain civil rights
protections and continue to be able to assert fair housing and
nondiscrimination claims, including against other parties that may be
involved such as lenders, or private landlords. Identifying what civil
rights protections can be asserted and against whom they can asserted
is a nuanced and fact-based analysis. Given this, HUD plans to develop
a Tribal certification exam that is appropriately tailored and that
will ensure that housing counselors can appropriately counsel families
about their rights. HUD appreciates the comment recommending that it
incorporate existing curricula or adopt certifications from the NAIHC,
NeighborWorks, Oweesta, or Pathways Home to satisfy the statutory
requirement for a certification examination that addresses the six core
competency areas. While HUD cannot accept these alternate curricula to
fulfill the certification requirements of Dodd-Frank, HUD has reviewed
this material and will use it to inform the development of the HUD
examination. The statute does not allow for these alternative curricula
to substitute for an exam created by HUD and its contractor.
To clarify the understanding of the commenter regarding whether a
housing counselor would need to be certified under Sec. 214.103(n),
Sec. 214.600(c), or both exams to be certified to counsel within IHBG
or ICDBG programs, housing counseling provided under or in connection
with IHBG or ICDBG programs must be conducted by a HUD certified
counselor who has passed
[[Page 49805]]
either the Sec. 214.103(n) examination or the certification
examination under Sec. 214.600(c). The counselor can choose to take
one or both exams to meet the certification examination requirement.
Training Material
Some commenters asked HUD to consider implementing Dodd-Frank-
compliant, culturally relevant training based on existing counseling
programs that Tribal housing programs have used and that would build
skills and competency in staff. One commenter pointed out that Tribes,
TDHEs, and Tribal CDFIs have already spent resources on training.
Another commenter asked for organizations that manage Tribally focused
counseling training to be updated on examination and curricula
requirements. One commenter asked HUD to include information about
Federal Indian Law in any trainings.
Commenters also requested that HUD increase access to training
resources, including making trainings available to TDHEs immediately,
stating that training resources to prepare for certification are only
available to HUD-certified counselors.
HUD Response: HUD agrees with the commenters and will provide
access to existing free study material and free study material that
accounts for any tailored exam components that it develops in
collaboration with Tribes, TDHEs, and other Tribal entities, to
implement this final rule. HUD may solicit Tribal input by providing
drafts of study materials developed for the exam prior to public
release to consider feedback. The rule also provides a four-year
transition period after the effective date of this final rule or 30
days after HUD makes the Tribal certification examination available,
whichever is later for individual counselors to be certified. HUD will
publish a document in the Federal Register to announce the start of
testing and the certification requirement. HUD will use this time to
make these resources available in addition to taking other steps to
ensure that Tribes can meet the certification requirements once they go
into effect.
Funding and Resources
Several commenters asked whether funding would be provided for
hiring Tribal housing counselors, especially for small Tribes and
TDHEs. One commenter asked whether TDHEs would be eligible for HUD
funding that is currently earmarked for HUD-approved housing counseling
agencies and whether this would lead to an increase in overall program
funding. Commenters requested that HUD make funding available to allow
Tribes to hire the necessary staff, or to give money to Tribes, TDHEs,
Tribal entities, or Tribal CDFIs for housing counseling activities,
such as the certification examination. One commenter asked HUD to
modify subpart F of the proposed rule to allow grants to support Tribal
housing counselors certified under subpart F if statutory or regulatory
barriers to Tribal eligibility are removed.
Some commenters expressed concerns that HUD's proposed requirements
would put a strain on Tribal resources. Commenters noted that Tribal
governments manage a variety of programs, and adding additional
requirements could add to their administrative burdens. One commenter
pointed out that Tribes, TDHEs, and Native CDFIs have already spent
resources on other similar trainings. Another commenter stated that HUD
had understated the impacts of the proposed rule, both regarding fiscal
cost and time and capacity constraints.
Commenters noted the proposed rule could cause hiring and retention
challenges for Tribal entities. One commenter noted that counselor
turnover, which is already a challenge in non-Native American
communities, would be a problem for many organizations. This commenter
emphasized the unique human capital challenges faced by small,
geographically dispersed communities. Another commenter noted requiring
counselors to be certified at the time of hiring could cause
difficulties in recruiting staff and could limit the Tribal
populations' eligibility for employment. The commenter noted that they
currently provide on-the-job training for employees after they are
onboarded and recommended that the proposed rule allow a grace period
of six months for new hires pursuing a counselor position.
Another commenter asked HUD to consider whether the HUD-certified
counselor had to be employed by a HUD-approved housing counseling
agency, Tribe, TDHE, or other Tribal entity, or whether a Tribal entity
could be allowed to contract out counseling activities. Commenters
noted many Tribes hire consultants or seek virtual counseling services
from other providers.
Several commenters in the third Tribal consultation expressed
concern over a lack of technical assistance available to those that do
choose to join HUD's Housing Counseling Program.
HUD Response: HUD does not have appropriated funding or authority
under Section 106 to provide Indian Tribes with the direct grant
assistance suggested by commenters. HUD understands, however, that
funding is currently available to qualified nonprofit 501(c)
organizations and state and local governmental entities including
Indian Housing Authorities considered state or local housing agencies
under State law.
HUD also recognizes that costs will be incurred by Tribes, TDHEs,
and Tribal organizations because of the written examination
requirement. In the past, HUD presented the examination in the most
cost-efficient way feasible and offered both online and in-person
examinations at a low cost. In addition, HUD has offered free study
materials for individuals to use in preparation for the examination.
HUD disagrees that it understated implementation costs in the
proposed rule. HUD examined and studied the costs related to the
development of and preparation for a housing counselor certification
examination in connection with its 2016 final rule implementing
certification requirements for most HUD programs. HUD has drawn from
these insights to implement this final rule in a way that minimizes
costs and burden.
To further minimize costs and support implementation of Tribal
housing certification, HUD will provide dedicated staff and training
for this new requirement and will host a web page for Tribes, TDHEs,
and Tribal organizations that includes free study materials, training
curriculum, and other resources to support the transition to this new
requirement.
Reporting and Compliance
Commenters noted concerns that the proposed rule would increase
reporting and compliance costs for Tribal entities. One commenter
stated that the proposed rule would require significant additional
resources and technical assistance to develop the required
infrastructure for reporting and compliance. Some commenters suggested
changes to the proposed rule to mitigate this increase in cost. A few
commenters suggested that there be no penalty for TDHEs that do not
have certified HUD counselors on staff, but rather a TDHE should be
able to explain how they provide counseling services by referral or
partnerships. One commenter suggested removing some of the reporting
and compliance aspects of the HUD Housing Counseling Program and
instead embedding reporting and compliance within the established
NAHASDA Indian Housing Plan and Annual Performance Report. The
commenter suggested including the Quarterly HUD 9902 form as an
attachment to that report and
[[Page 49806]]
eliminating the HUD 9910 or consolidating it into monitoring and
counseling tracking in existing software if additional funding was
provided to adapt this software.
HUD Response: HUD agrees with commenters that the submission of HUD
forms, when applicable, should be consolidated to reduce existing
reporting burdens. However, the final rule imposes no new reporting
burdens because Tribes, TDHEs and other Tribal entities conducting
housing counseling provided under or in connection solely with IHBG
and/or ICDBG are not subject to subparts A through E of 24 CFR part
214, including the requirement to counsel at least 30 clients within a
12-month period. Tribes, TDHEs and other Tribal entities remain subject
to the reporting requirements under IHBG and ICDBG and are exempt from
compulsory participation in HUD's Housing Counseling Program unless the
entities also provide counseling under or in connection with certain
other HUD programs.
Eligibility and Applicability
Commenters proposed changes to the proposed rule's applicability in
Sec. 214.300(a)(8), which contains counseling service requirements for
rental housing programs. Specifically, the commenters noted that many
Tribes and TDHEs have separate rental and homebuyer programs, or
primarily deal with rental housing, so the certification should not
apply to tenant services staff and rental department staff. Commenters
noted the proposed rule change applies to IHBG and ICDBG and
recommended that a counselor who is certified as working for a Tribe,
TDHE or other Tribal entity should be able to provide counseling to
people outside of these programs. One commenter requested clarification
on whether a counselor that works for a Tribal entity will also need to
work for a HUD-approved housing counseling agency. Another commenter
asked how a TDHE could become a HUD-approved housing counseling agency
and whether a TDHE could partner with a national intermediary without
501(c)(3) status. One commenter in the third Tribal consultation
encouraged HUD to allow Tribes, TDHEs and other Tribal Entities to be
deemed HUD-approved upon partnering with a HUD-approved organization.
HUD Response: For those not participating in HUD's Housing
Counseling Program, HUD encourages partnerships with other HUD-approved
housing counseling agencies, Tribes, TDHEs, and other Tribal entities
(e.g., a HUD-approved Native CDFI) with a certified housing counselor
on staff to improve community access to housing counseling services.
HUD encourages partnerships that best meet the needs of Tribal
communities, as determined by those communities.
This final rule exempts Tribes, TDHEs, and other Tribal entities
from compulsory participation in HUD's Housing Counseling Program
unless the entities also provide counseling under or in connection with
other HUD programs (programs other than IHBG and ICDBG). If an
individual working for an Indian tribe, TDHE, or other Tribal entity
provides housing counseling for HUD programs other than ICDBG and IHBG,
that individual is required to comply with the existing housing
counselor certification requirement of 24 CFR 214.103(n) (i.e., pass
the examination and work for a HUD-approved housing counseling agency).
Timeline for Implementation
Some commenters expressed concern over how quickly Tribes would
have to come into compliance with the proposed rule. The commenters
questioned whether a three-year transition period, as proposed in the
proposed rule, would be enough time to address planning and training
needs. One commenter noted that HUD-approved Housing Counseling
Agencies were given four years to comply with testing requirements and
Tribal entities should be given at least the same amount of time. One
commenter stated that a counselor who is already certified should have
the same time frame to take any additional exams that are created out
of this proposed rule as someone who currently holds no certification.
HUD Response: HUD agrees and will provide for an additional 12
months to comply with Tribal certification requirements, consistent
with the time afforded to HUD-approved housing counseling agencies and
counselors complying with the requirements of 24 CFR 214.103(n). The
Tribal certification examination is not yet available, but HUD will
issue updates in the Federal Register or other means regarding the
Tribal certification exam release date as the testing development phase
progresses and the implementation date nears.
IV. Findings and Certifications
Regulatory Review--Executive Orders 12866, 13563, and 14094
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. E.O. 14094
(Modernizing Regulatory Review) amends section 3(f) of E.O. 12866,
among other things.
This final rule brings HUD's IHBG and ICDBG Programs into
compliance with statutory requirements added by Dodd-Frank and required
by other HUD programs since 2016. This final rule provides a
streamlined compliance option consistent with the statutory requirement
and responsive to Tribal consultation. This rule was determined not to
be a ``significant regulatory action'' as defined in section 3(f) of
Executive Order 12866 as amended by Executive Order 14094 and is not an
economically significant regulatory action and therefore was not
subject to OMB review.
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 would not have
a significant economic impact on a substantial number of small
entities.
HUD has determined that this rule will not have a significant
economic impact on all entities, including small entities. As discussed
in the preamble, this final rule revises the Housing Counseling Program
to require that counselors providing counseling funded under or in
connection with IHBG or ICDBG be certified. Tribes, TDHEs and other
Tribal entities conducting housing counseling provided under or in
connection solely with IHBG and/or ICDBG are not subject to subparts A
through E of 24 CFR part 214. By not being subject to these subparts,
these entities avoid the bulk of compliance costs, allowing them to
allocate the savings toward addressing the unique needs of their
communities.
Further, the requirement for individual counselors to be certified
[[Page 49807]]
provides a four-year transition period after the effective date of this
final rule. This four-year period provides ample notice of the need to
be skilled in the required areas. HUD will also provide access to
existing free study material that accounts for any tailored exam
components that it develops, reducing costs associated with training
and compliance.
For these reasons, the undersigned certifies that this rule would
not have a significant economic impact on a substantial number of small
entities.
Environmental Impact
This 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 rule
is categorically excluded from environmental review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321).
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 Order. This rule does not have federalism
implications and would not impose substantial direct compliance costs
on State and local governments nor preempts State law within the
meaning of the Order.
Paperwork Reduction Act
The information collection requirements contained in this final
rule have been submitted to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). 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 valid control number.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) (UMRA) establishes requirements for Federal agencies to
assess the effects of their regulatory actions on State, local, and
Tribal governments, and on the private sector. This rule does not
impose any Federal mandates on any State, local, or Tribal governments,
or on the private sector, within the meaning of UMRA.
List of Subjects
24 CFR Part 214
Administrative practice and procedure, Loan program--housing and
community development, Organization and functions (government
agencies), Reporting and record-keeping requirements.
24 CFR Part 1000
Aged, Community development block grants, Grant programs--housing
and community development, Grant programs--Indians, Indians,
Individuals with disabilities, Low and moderate income housing, Public
housing, Reporting and recordkeeping.
24 CFR Part 1003
Alaska, Community development block grants, Grant programs--housing
and community development, Indians, Reporting and recordkeeping
requirements.
Accordingly, for the reasons stated in the preamble, HUD amends 24
CFR parts 214, 1000, and 1003 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. In Sec. 214.3, add the definitions for ``HUD-certified tribal
housing counselor'' and ``Tribally designated housing entity'' in
alphabetical order to read as follows:
Sec. 214.3 Definitions.
* * * * *
HUD-certified Tribal housing counselor. A housing counselor who has
passed the HUD Certification examination as described in subpart F of
this part, works for an Indian Tribe, Tribally designated housing
entity (TDHE), or other Tribal entity, and is certified by HUD as
competent to provide housing counseling services pursuant to subpart F
of this part.
* * * * *
Tribally designated housing entity. See definition at 25 U.S.C.
4103.
* * * * *
0
3. Add subpart F to read as follows:
Subpart F--Certification of Tribal Housing Counselors
Sec.
214.600 Tribal housing counselor certification.
214.601 [Reserved]
Subpart F--Certification of Tribal Housing Counselors
Sec. 214.600 Tribal housing counselor certification.
(a) This subpart applies only to housing counseling required under
or provided in connection with the Indian Housing Block Grant (IHBG)
program or the Indian Community Development Block Grant (ICDBG)
program. Indian Tribes, tribally designated housing entities (TDHEs),
and other tribal entities funding housing counseling required under or
provided in connection with IHBG or ICDBG programs shall not be subject
to the requirements of this part, except as otherwise provided in this
subpart.
(b) Housing counseling required under or provided in connection
with IHBG or ICDBG programs must be provided by a HUD-certified housing
counselor or a HUD-certified Tribal housing counselor.
(c) HUD will certify an individual housing counselor to provide
housing counseling required under or provided in connection with IHBG
or ICDBG programs upon verification that the person:
(1) Passes a standardized written examination to demonstrate
competency in each of the following areas:
(i) Financial management;
(ii) Property maintenance;
(iii) Responsibilities of homeownership and tenancy;
(iv) Fair housing laws and requirements;
(v) Housing affordability; and
(vi) Avoidance of, and response to, rental or mortgage delinquency
and avoidance of eviction or mortgage default; and
(2) Works for an Indian Tribe, TDHE, or other Tribal entity.
(d) To provide housing counseling required under or provided in
connection with HUD programs other than the IHBG and ICDBG programs, an
individual working for an Indian Tribe, TDHE, or other Tribal entity
must meet the housing counseling certification requirement under Sec.
214.103(n), including the standardized written examination required
under Sec. 214.103(n)(2), and the Indian Tribe, TDHE, or other Tribal
entity must be a participating agency).
(e) Entities and individuals providing housing counseling under
this subpart must be certified by the Office of Housing Counseling by
48 months from the effective date of this rule or 30 days
[[Page 49808]]
after HUD makes the Tribal certification examination available,
whichever is later. HUD will publish a document in the Federal Register
to announce the start of the testing and certification requirement.
Sec. 214.601 [Reserved]
PART 1000--NATIVE AMERICAN HOUSING ACTIVITIES
0
4. The authority citation for part 1000 continues to read as follows:
Authority: 25 U.S.C. 4101 et seq.; 42 U.S.C. 3535(d).
0
5. Add Sec. 1000.66 to subpart A to read as follows:
Sec. 1000.66 Housing counseling.
Housing counseling, as defined in 24 CFR 5.100, that is required
under or provided in connection with IHBG funds must be carried out in
accordance with 24 CFR 5.111. Housing counseling conducted in
connection with the IHBG program may only be conducted by individuals
who are HUD-certified in accordance with 24 CFR part 214, subpart F.
PART 1003--COMMUNITY DEVELOPMENT BLOCK GRANTS FOR INDIAN TRIBES AND
ALASKA NATIVE VILLAGES
0
6. The authority citation for part 1003 continues to read as follows:
Authority: 42 U.S.C. 3535(d) and 5301 et seq.
0
7. Add Sec. 1003.609 to subpart G to read as follows:
Sec. 1003.609 Housing counseling.
Housing counseling, as defined in 24 CFR 5.100, that is funded with
or provided in connection with ICDBG funds must be carried out in
accordance with 24 CFR 5.111. Housing counseling conducted in
connection with the ICDBG program may only be conducted by individuals
who are HUD-certified in accordance with 24 CFR part 214, subpart F.
Julia Gordon,
Federal Housing Commissioner, Office of the Assistant Secretary for
Housing.
[FR Doc. 2024-12777 Filed 6-11-24; 8:45 am]
BILLING CODE 4210-67-P
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</html>Indexed from Federal Register on June 12, 2024.
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