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HUD Rulemaking

What is HUD’s authority to issue legislative rules?

HUD issues a legislative rule under authority given to it by Congress in statutes. The statutory delegation of authority can range from broad discretionary authority to a very specific mandate.

As previously discussed, HUD’s general authority to issue regulations is found in section 7(d) of the Department and Housing Urban Development Act (Department of HUD Act), 42 U.S.C. 3535. Section 7(d) provides as follows:

(d) The Secretary may delegate any of his functions, powers, and duties to such officers and employees of the Department as he may designate, may authorize such successive redelegations of such functions, powers, and duties as he may deem desirable, and may make such rules and regulations as may be necessary to carry out his functions, powers, and duties (Emphasis added.)

An example of a specific statutory mandate to issue regulations can be found in section 1504 of Title V of Division B of Public Law 111-22, enacted May 20, 2008. Division B is the Homeless Emergency and Rapid Transition to Housing Action of 2009. Section 1504 states as follows:

SEC. 1504. REGULATIONS. (a) IN GENERAL.—Not later than 12 months after the date of the enactment of this division, the Secretary of Housing and Urban Development shall promulgate regulations governing the operation of the programs that are created or modified by this division. (b) EFFECTIVE DATE.—This section shall take effect on the date of the enactment of this division.

How does HUD identify the need for a rulemaking?

There are many reasons why HUD may decide to initiate the rulemaking process. The reasons fall mainly into the following categories:

  • Statutory mandate. Congress may specifically require a rule or the initiation of the rulemaking process to flesh out a statutory provision. In addition, some statutes are so broad or vague that agency rulemaking is required to implement them.
  • Agency identification of a problem. An agency may itself identify a problem such as an industry behavior that adversely affects consumers. An agency may encounter difficulties enforcing existing rules and this may provide evidence of a need to modify the rules. Requests for interpretations of or exemptions from existing rules may demonstrate that a rule needs to be clarified or modified, or, changes in technology may suggest that it is time to update a rule.
  • Petition for rulemaking. The public has the right to petition an agency to issue, modify, or rescind a rule, and an agency may agree on the need for action. See 24 CFR § 10.20. HUD’s regulations in 24 CFR Part 20 describe the process to petition HUD for rulemaking.

How does HUD initially determine the best solution to a problem?

Before deciding to start the rulemaking process, HUD evaluates possible alternatives to rulemaking. For example, HUD evaluates whether an identified problem in a HUD program may be resolved without the issuance of a rule. For example, HUD may consider whether there are less burdensome alternatives than prescribing certain conduct, or HUD may decide that requiring the disclosure of certain information by participants in HUD programs would achieve HUD’s objectives.

How does HUD determine whether its rules are working effectively?

HUD undertakes periodic review of its existing regulations to determine whether the regulations are working effectively. Under Executive Order 13563 “Improving Regulation and Regulatory Review” and Executive Order 13610 “Identifying and Reducing Regulatory Burdens,” HUD is required to engage in periodic review of existing significant regulations to determine if they should be modified, and review all existing regulations to seek more affordable and less intrusive ways to achieve policy goals and give careful consideration to the benefits and costs of such regulations.

How to obtain information on, or notices about, rulemakings on which HUD is working?

There are several resources to help the public learn about the substance and status of HUD’S rulemaking activities:

  • HUD’s Semiannual Regulatory Agenda. Twice a year, as part of a Government-wide effort, HUD (and all Federal agencies) publishes an Agenda of all of its rulemaking activity. The Agenda includes brief descriptions of each rulemaking, its current status, and a schedule for next actions. It is published in the Federal Register and made available on the Internet. HUD’s semiannual agenda and those of all Federal agencies can be found on the Regulations.gov website at https://resources.regulations.gov/public/component/main?main=UnifiedAgenda.
  • HUD’s Rules under 12866 Review. OMB maintains a list of all rules under OIRA 12866 review. The list identifies NPRMs and Final Rules that are being reviewed by OIRA and includes a date for which the rule was submitted to OIRA for review. Rules under 12866 review can be found at https://www.reginfo.gov/public/.
    In addition to these regular reports, HUD will sometimes issue press announcements, post information on HUD’s website, and take other actions to provide notice and information to interested persons.

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