HUD published an interim final rule on November 10 implementing Executive Order (EO) 13891, Promoting the Rule of Law Through Improved Agency Guidance Documents, issued on October 9, 2019. EO 13891 addresses guidance materials used by federal agencies such as HUD that clarify existing regulatory or statutory requirements.
The interim rule establishes a new part 11 in title 24 CFR, the Code of Federal Regulations that contains all of HUD’s regulations. Each guidance document will have to clearly state that the document does not have the force or effect of law. HUD will seek public participation in the development of “significant guidance” documents and will provide 30 days for public comment. HUD will make guidance documents available on a single, searchable, and indexed public website. Any member of the public can petition the applicable HUD program office (such as the Office of Public and Indian Housing, PIH) to have a guidance document withdrawn, and HUD must respond within 90 days.
The interim rule includes as guidance documents HUD handbooks, notices, policy statements, frequently asked questions (FAQs), and compliance documents, among others. Notices of Funding Availability (NOFAs) are not considered guidance documents. A “significant guidance” document is one that leads to an annual effect on the economy of $100 million or more, or that adversely affects 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 government or communities.
It is uncertain whether the new Biden Administration will withdraw or modify this interim final rule based on a Trump Administration EO that was not subject to the type of public review and comment the EO purports to value.
The interim final rule is at: https://bit.ly/36tmjX4
EO 13891 Promoting the Rule of Law Through Improved Agency Guidance Documents is at: https://bit.ly/3n7mWMO