[Federal Register Volume 78, Number 178 (Friday, September 13, 2013)]
[Proposed Rules]
[Pages 56625-56632]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-22229]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 214

[Docket No. FR 5339-P-01]
RIN 2502-AI94


Housing Counseling Program: New Certification Requirements

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

ACTION: Proposed rule.

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SUMMARY: HUD's Housing Counseling Program provides, through HUD-
approved counseling agencies and state housing finance agencies, 
including their affiliates and branches, counseling to individuals 
seeking information about financing, maintaining, renting, or owning a 
home. The Dodd-Frank Wall Street Reform and Consumer Protection Act 
amended the housing counseling statute to improve the effectiveness of 
the program by, among other things, requiring that the entities and 
individual counselors be certified by HUD as competent to provide such 
services, and prohibiting distribution of grant funds to agencies found 
in violation of Federal election laws or who have employees found in 
violation of Federal election laws, and requiring the reimbursement of 
grant funds for misuse of funds. This proposed rule would revise HUD's 
Housing Counseling Program regulations to adopt the new requirements 
applicable to counseling agencies and individual counselors, and the 
use of grant funds.

DATES: Comment Due Date: November 12, 2013.

ADDRESSES: Interested persons are invited to submit comments regarding 
this proposed 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. Communications must refer 
to the above docket number and title. There are two methods for 
submitting public comments. All submissions must refer to the above 
docket number and title.
    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 Web site 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 speech or 
hearing impairments may access this number via TTY by calling the 
Federal Relay Service at 800-877-8339. Copies of all comments submitted 
are available for inspection and downloading at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ruth Rom[aacute]n, Office of Housing 
Counseling, Office of Housing, Department of Housing and Urban 
Development, 1250 Maryland Avenue SW., Room P2206, Washington, DC 
20410-8000; telephone number 202-708-0317 (this is not a toll-free 
number). Persons with hearing or speech challenges may access this 
number through TTY by calling the toll-free Federal Relay Service at 
800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    HUD's Housing Counseling Program, established pursuant to section 
106 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701x) 
(1968 Act), authorizes HUD, through HUD-approved organizations and 
state housing finance agencies, and their branches and affiliates, to 
provide housing counseling services to potential homebuyers, 
homeowners, homeowners at risk of default, renters, and the homeless. 
Housing counseling services include assisting eligible homebuyers find 
and purchase affordable homes; helping renters locate and apply for 
affordable rental units; helping homeowners avoid foreclosure; helping 
renters avoid eviction; assisting the homeless in finding shelter; and 
reporting fair housing complaints and addressing housing problems. 
Section 106 of the 1968 Act authorizes HUD to provide counseling 
directly or to enter into contracts with, or make grants to, eligible 
private or public organizations with special competence and knowledge 
in providing housing counseling to low- and moderate-income families.
    HUD's regulations for the Housing Counseling Program were 
promulgated

[[Page 56626]]

in 2007,\1\ and are codified in 24 CFR part 214. The regulations 
currently define major terms used in the program and the basic services 
that counseling agencies must provide to clients. The current 
regulations also delineate criteria that housing counseling agencies 
are required to meet in order to become and remain HUD-approved housing 
counseling agencies, explain the application process for agencies 
seeking to become approved housing counseling agencies, and set forth 
procedures for termination of an agency's HUD-approved status and 
related appeal rights.
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    \1\ See HUD's final rule published on September 28, 2007, at 72 
FR 55648.
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    Subtitle D of title XIV of the Dodd-Frank Wall Street Reform and 
Consumer Protection Act (Pub. L. 111-203, 124 Stat. 1376 (July 21, 
2010)) (Dodd-Frank Act), which consists of sections 1440 through 1453, 
made several amendments to strengthen HUD's Housing Counseling Program. 
Section 1442 amended section 4 of the Department of Housing and Urban 
Development Act (Department of HUD Act) to establish an Office of 
Housing Counseling within HUD specifically devoted to administration 
and oversight of housing counseling agencies, individual counselors, 
and the counseling services offered under the program. Sections 1443, 
1444, 1445, and 1448 of the Dodd-Frank Act amend section 106 of the 
1968 Act to improve the effectiveness of HUD's Housing Counseling 
Program by, among other things: Defining certain commonly used terms in 
the program; ensuring that HUD-approved counselors provide counseling 
covering the entire process of homeownership, from the purchase of a 
home to its disposition; ensuring that rental or homeownership 
counseling provided in connection with HUD programs is administered in 
accordance with procedures established by HUD; and requiring that all 
HUD-related homeownership counseling and rental housing counseling, 
provided in connection with any HUD program,\2\ is provided by HUD-
certified housing counseling agencies through their HUD-certified 
housing counselors.
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    \2\ Section 1443 added section 106(e)(3) and amended section 
106(g)(1)(A) to clarify that homeownership counseling or rental 
housing counseling provided in connection with any program 
administered by HUD must be provided by HUD-approved counseling 
agencies.
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    In addition to enhancing the skill and competency of the housing 
counseling agencies and individual counselors participating in HUD's 
Housing Counseling Program, HUD, as a result of its experience in 
administering the program to date, has identified certain changes to 
the program that would further strengthen the Housing Counseling 
Program. HUD plans to propose those changes through separate 
rulemaking. This proposed rule is limited to establishing the new 
statutory requirements applicable to counseling agencies and individual 
counselors. HUD's existing regulations for the Housing Counseling 
Program used the term HUD-approved, which is also used in the 1968 Act, 
as amended by the Dodd-Frank Act, and the amendments include a 
definition of ``HUD-approved counseling agency.'' However, the 
amendments made by the Dodd-Frank Act also use the term ``HUD-
certified.'' With respect to counseling agencies, the terms HUD-
approved and HUD-certified have the same meaning, and the use of these 
terms in this rule reflect the interchangeableness of the terms. The 
use of HUD-certified in connection with individuals reflects the 
amendment made by the Dodd-Frank Act that mandates that the individual 
counselors participating in HUD's Housing Counseling Program must be 
certified.

II. This Proposed Rule

A. New Definitions

    Section 1448 of the Dodd-Frank Act defines the terms, ``HUD-
approved counseling agency,'' ``nonprofit organization,'' ``state,'' 
``state housing finance agency'' and ``unit of local government.'' HUD 
adopts the definition of ``HUD-approved counseling agency,'' to replace 
the definition for this term as currently defined in Sec.  214.3. The 
proposed rule would not replace the current regulatory definition of 
``state housing finance agency'' with the statutory definition provided 
in section 1448 of the Dodd-Frank Act. With the exception of minor 
wording changes that are not substantive, the statutory definition of 
``state housing finance agency'' is the same as the current regulatory 
definition. This rule incorporates the remaining statutory definitions 
in Sec.  214.3 of HUD's regulations. In addition to the statutory 
definitions being added to the regulations, this proposed rule would 
add a definition of ``HUD-certified housing counselor'' to reflect the 
new statutory requirements that the individual counselors must be 
certified.
    The definitions being added by this proposed rule are as follows:
    HUD-approved counseling agency. The term ``HUD-approved counseling 
agency'' means a private or public nonprofit organization that is--
    (1) Exempt from taxation under section 501(c) of the Internal 
Revenue Code of 1986; and
    (2) Certified by the Secretary to provide housing counseling 
services.
    HUD-certified housing counselor. A counselor, employed by a 
participating agency, who has passed the requisite examination and is 
certified by HUD as competent to provide housing counseling services 
pursuant to this part.
    Nonprofit organization. The term `nonprofit organization' has the 
meaning given such term in section 104(5) of the Cranston-Gonzalez 
National Affordable Housing Act (42 U.S.C. 12704(5)), except that 
subparagraph (D) of such section shall not apply for the purposes of 
this section.
    State. The term ``State'' means each of the several States, the 
Commonwealth of Puerto Rico, the District of Columbia, the Commonwealth 
of the Northern Mariana Islands, Guam, the Virgin Islands, American 
Samoa, the Trust Territories of the Pacific, or any other possession of 
the United States.
    Unit of general local government. The term ``unit of general local 
government'' means any city, county, parish, town, township, borough, 
village, or any other general purpose political subdivision of a State.
    In addition to the definitions in section 1448 of the Dodd-Frank 
Act, the Dodd-Frank Act defines the terms ``homeownership counseling'' 
and ``rental housing counseling.''
    Homeownership counseling is defined by section 1443 to mean 
counseling related to homeownership and residential mortgage loans, 
including counseling related to homeownership and residential mortgage 
loans that is provided pursuant to:
    (1) Section 105(a)(20) of the Housing and Community Development Act 
of 1974 (42 U.S.C. 5305(a)(20)) pertaining to housing counseling in 
connection with tenant-based assistance and affordable housing 
assistance under the HOME program, in the context of eligible 
activities under the Community Development Block Grant program;
    (2) In the United States Housing Act of 1937--
    (i) Section 9(e) (42 U.S.C. 1437g(e)) pertaining to housing 
counseling in connection with the Public Housing Operating Fund;
    (ii) Section 8(y)(1)(D) (42 U.S.C. 1437f(y)(1)(D)) pertaining to 
housing counseling in connection with section 8 tenant-based rental 
assistance homeownership options;
    (iii) Section 18(a)(4)(D) (42 U.S.C. 1437p(a)(4)(D)) pertaining to 
housing counseling in connection with

[[Page 56627]]

displacement due to demolition and disposition of public housing;
    (iv) Section 23(c)(4) (42 U.S.C. 1437u(c)(4)) pertaining to housing 
counseling in connection with the Family Self-Sufficiency program;
    (v) Section 32(e)(4) (42 U.S.C. 1437z-4(e)(4)) pertaining to 
housing counseling in connection with public housing resident 
homeownership programs;
    (vi) Section 33(d)(2)(B) (42 U.S.C. 1437z-5(d)(2)(B)) pertaining to 
housing counseling in connection with conversion of distressed public 
housing to tenant-based assistance; and
    (vii) Sections 302(b)(6), 303(b)(7), and 304(c)(4) (42 U.S.C. 
1437aaa-1(b)(6), 1437aaa-2(b)(7), 42 U.S.C. 1437aaa-3(c)(4)) pertaining 
to housing counseling in connection with Hope for Public Housing 
Homeownership grants;
    (3) Section 302(a)(4) of the American Homeownership and Economic 
Opportunity Act of 2000 (42 U.S.C. 1437f note) pertaining to housing 
counseling in connection with the pilot program for homeownership 
assistance for families with a member who is a person with a 
disability;
    (4) In the Cranston-Gonzalez National Affordable Housing Act--
    (i) Section 233(b)(2) (42 U.S.C. 12773(b)(2)) pertaining to housing 
counseling in connection with community housing development 
organizations' set-asides from HOME technical assistance funds; and
    (ii) Section 258(b) (42 U.S.C. 12808(b)) pertaining to housing 
counseling in connection with second mortgage assistance for first-time 
homebuyers;
    (5) In the Housing and Urban Development Act of 1968--
    (i) Section 101(e) (12 U.S.C. 1701w(e)) pertaining to housing 
counseling in connection with mortgage assistance provided pursuant to 
section 235 of the National Housing Act; and
    (ii) Section 106 (12 U.S.C. 1701x) pertaining to housing counseling 
in connection with the general housing counseling program;
    (6) Section 220(d)(2)(G) of the Low-Income Housing Preservation and 
Resident Homeownership Act of 1990 (LIHPRHA) (12 U.S.C. 4110(d)(2)(G)) 
pertaining to housing counseling in connection with prepayments of 
mortgages under LIHPRHA;
    (7) Sections 422(b)(6), 423(b)(7), 424(c)(4), 442(b)(6), and 
443(b)(6) of the Cranston-Gonzalez Affordable Housing Act (42 U.S.C. 
12872(b)(6), 12873(b)(7), 12874(c)(4), 12892(b)(6), and 12893(b)(6)) 
pertaining to housing counseling in connection with Hope for Homeowners 
planning and implementation grants;
    (8) Section 491(b)(1)(J)(iii) of the McKinney-Vento Homeless 
Assistance Act (42 U.S.C. 11408(b)(1)(J)(iii)) pertaining to housing 
counseling in connection with rural homelessness and rural housing 
stability grants;
    (9) Sections 202(3) and 810(b)(2)(A) of the Native American Housing 
and Self-Determination Act of 1996 (25 U.S.C. 4132(3), 4229(b)(2)(A)) 
pertaining to housing counseling in connection with Indian Housing 
Block Grants and Native Hawaiian Housing Block Grants;
    (10) In the National Housing Act--
    (i) In section 203 (12 U.S.C. 1709), the ultimate undesignated 
paragraph of paragraph (2) of subsection (b), subsection (c)(2)(A), and 
subsection (r)(4) pertaining to housing counseling in connection with 
single-family mortgage insurance; and
    (ii) Subsections (d)(2)(B) and (m)(1) of section 255 (12 U.S.C. 
1715z-20) pertaining to housing counseling in connection with home 
equity conversion mortgages;
    (11) Section 502(h)(4)(B) of the Housing Act of 1949 (42 U.S.C. 
1472(h)(4)(B)) pertaining to housing counseling in connection with the 
farm housing loan guarantee program; and
    (12) Section 106 of the Energy Policy Act of 1992 (42 U.S.C. 12712 
note) pertaining to housing counseling in connection with the energy 
efficient mortgages pilot program.
    In addition to this definition of ``homeownership counseling,'' 
section 1442 of the Dodd-Frank Act specifies that the scope of 
homeownership counseling provided by, in connection with, or pursuant 
to any function, activity, or program of the Department, is to address 
the entire process of homeownership, including the decision to purchase 
a home, the selection and purchase of a home, issues arising during or 
affecting the period of ownership of a home (including refinancing, 
default and foreclosure, and other financial decisions) and the sale or 
other disposition of a home.
    Rental housing counseling is defined by section 1443 to mean 
counseling related to rental of residential property, which may include 
counseling regarding homeownership opportunities and providing 
referrals for renters and prospective renters to entities providing 
counseling, and shall include counseling related to such topics 
provided pursuant to:
    (1) Section 105(a)(20) of the Housing and Community Development Act 
of 1974 (42 U.S.C. 5305(a)(20)) pertaining to housing counseling in 
connection with tenant-based assistance and affordable housing assisted 
under the HOME program, in the context of eligible activities under the 
Community Development Block Grant program;
    (2) In the United States Housing Act of 1937--
    (i) Section 9(e) (42 U.S.C. 1437g(e)) pertaining to housing 
counseling in connection with the Public Housing Operating Fund;
    (ii) Section 18(a)(4)(D) (42 U.S.C. 1437p(a)(4)(D)) pertaining to 
housing counseling in connection with displacement due to demolition 
and disposition of public housing;
    (iii) Section 23(c)(4) (42 U.S.C. 1437u(c)(4)) pertaining to 
housing counseling in connection with the Family Self-Sufficiency 
program;
    (iv) Section 32(e)(4) (42 U.S.C. 1437z-4(e)(4)) pertaining to 
housing counseling in connection with public housing resident 
homeownership programs;
    (v) Section 33(d)(2)(B) (42 U.S.C. 1437z-5(d)(2)(B)) pertaining to 
housing counseling in connection with conversion of distressed public 
housing to tenant-based assistance; and
    (vi) Section 302(b)(6) (42 U.S.C. 1437aaa-1(b)(6)) pertaining to 
housing counseling in connection with Hope for Public Housing 
Homeownership grants;
    (3) In the Cranston-Gonzalez National Affordable Housing Act--
    (i) Section 233(b)(2) (42 U.S.C. 12773(b)(2)) pertaining to housing 
counseling in connection with community housing development 
organizations' set-asides from HOME technical assistance funds; and
    (ii) Section 422(b)(6) (42 U.S.C. 12872(b)(6)) pertaining to 
housing counseling in connection with Hope for Homeowners planning 
grants;
    (4) Section 106 of the Housing and Urban Development Act of 1968 
(12 U.S.C. 1701x) pertaining to housing counseling in connection with 
the general housing counseling program;
    (5) Section 491(b)(1)(J)(iii) of the McKinney-Vento Homeless 
Assistance Act (42 U.S.C. 11408(b)(1)(J)(iii)) pertaining to housing 
counseling in connection with rural homelessness and rural housing 
stability grants;
    (6) Sections 202(3) and 810(b)(2)(A) of the Native American Housing 
and Self-Determination Act of 1996 (25 U.S.C. 4132(3), 4229(b)(2)(A)) 
pertaining to housing counseling in connection with Indian Housing 
Block Grants and Native Hawaiian Housing Block Grants; and
    (7) The rental assistance program under section 8 of the United 
States Housing Act of 1937 (42 U.S.C. 1437f) pertaining to housing 
counseling in connection with rental assistance provided under such 
section.
    As the above definitions reflect, the statutory definitions for 
``homeownership counseling'' and

[[Page 56628]]

``rental housing counseling'' include all current statutorily required 
or permissible housing counseling in HUD's programs. The definitions 
for these terms, to be provided in Sec.  214.3, will not include the 
long list of HUD programs, as specified in the statute. HUD is 
cognizant that this list may change as new HUD programs are 
established, or HUD programs, not currently listed, are directed to 
provide housing counseling to individuals, or programs become obsolete. 
However, the regulatory text cross-references the statutory list, and 
the list of HUD programs for which housing counseling may be provided 
will be posted on HUD's Housing Counseling Web site.
    HUD includes in its definition of ``homeownership'' in Sec.  214.3 
the scope of homeownership specified by section 1442 of the Dodd-Frank 
Act and the HUD programs requirement in section 1445 of the Dodd-Frank 
Act. Section 1445 of the Dodd-Frank Act specifies that ``homeownership 
counseling'' and ``rental housing counseling'' required or provided in 
connection with any program administered by the Department be provided 
only by HUD-approved housing counseling agencies. The definitions of 
``homeownership counseling'' and ``rental housing counseling'' 
incorporate that change by clarifying that all HUD programs, which, by 
statute, are required or eligible to provide housing counseling, are 
covered by the HUD approval and certification requirements relating to 
``homeownership counseling'' and ``rental housing counseling.'' The 
Dodd-Frank Act did not alter any of these statutorily-listed HUD 
programs other than to clarify that the housing counseling is to be 
provided by HUD-approved housing counseling agencies.

B. Counseling That Covers the Entire Process of Homeownership

    Section 1442 of the Dodd-Frank Act requires homeownership 
counseling to address the entire process of homeownership, including 
the decision to purchase a home, the selection and purchase of a home, 
issues arising during or affecting the period of ownership of a home 
(including refinancing, default, and foreclosure, and other financial 
decisions), and the sale or other disposition of a home. In accordance 
with section 1442 of the Dodd-Frank Act, paragraph (b)(1) would be 
amended and a new paragraph (b)(3) would be added to Sec.  214.300 to 
reflect the statutory requirement that homeownership counseling address 
the entire process of homeownership. Although HUD is proposing to amend 
its regulations to reflect this requirement, it is important to note 
that HUD's Housing Counseling Program has always offered counseling to 
address the entire process of homeownership. HUD's Web site on its 
Housing Counseling Program reflects this,\3\ as do HUD's annual fiscal 
year (FY) notices of funding availability (NOFAs) for the Housing 
Counseling Program.\4\
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    \3\ See http://portal.hud.gov/hudportal/HUD?src=/i_want_to/talk_to_a_housing_counselor, and http://www.hud.gov/offices/hsg/sfh/hcc/hcs.cfm.
    \4\ See, for example, FY2010 Housing Counseling NOFA at http://archives.hud.gov/funding/2010/hcpsec.pdf, HUD's FY2012 Housing 
Counseling NOFA at http://archives.hud.gov/funding/2012/hcpnofa.pdf, 
HUD's FY2013 Housing Counseling NOFA at http://portal.hud.gov/hudportal/documents/huddoc?id=2013chcnofa.pdf.
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    Section 1451 of the Dodd-Frank Act requires housing counseling 
agencies to provide materials on home inspection, as part of home 
purchase counseling. In accordance with this section, a new paragraph 
(b)(4) would be added to Sec.  214.300 to reflect the requirement that 
the provision of information regarding home inspections be part of home 
purchase counseling.

C. Certification To Provide Counseling

    Section 1445 of the Dodd-Frank Act amended section 106(e) of the 
1968 Act to require that organizations providing counseling, or 
individuals providing counseling through such organizations, as 
authorized by section 106 to provide housing counseling in connection 
with any HUD program, be certified by HUD as competent to provide such 
counseling. To become HUD certified under section 106(e), individuals, 
working with a participating agency, must demonstrate competency by 
passing a standardized written examination covering six major areas of 
housing counseling. These areas include: (1) Financial management; (2) 
property maintenance; (3) responsibilities of homeownership and 
tenancy; (4) fair housing laws and requirements; (5) housing 
affordability; and (6) avoidance of, and responses to, rental and 
mortgage delinquency and avoidance of eviction and mortgage default. 
For an organization to become HUD certified under section 106(e), all 
individuals through which the organization provides counseling must be 
certified as competent to provide such counseling. The written 
examination will be administered by HUD or an entity or entities 
contracted by HUD. HUD will announce the administrator of the 
examination with the issuance of the final rule that will follow this 
proposed rule. While the currently codified regulations approve 
counseling agencies for participation in HUD's Housing Counseling 
Program only for a period of up to 3 years, HUD is not proposing 
reexamination of individual counselors every 3 years. While HUD may 
consider at some point requiring individual counselors to take courses 
to maintain their skills and keep up-to-date with homeownership/housing 
market issues, this proposed rule provides for the examination only to 
be taken and passed once for an individual to be certified.
    Pursuant to section 1445 of the Dodd-Frank Act, the approval 
criteria at Sec.  214.103(g)(2) would be amended to require that all 
individuals providing homeownership or rental housing counseling 
related to HUD programs be HUD-certified housing counselors. In 
addition, this proposed rule would add a new paragraph (n) to Sec.  
214.103 to provide the certification criteria for housing counselors, 
housing counseling agencies, and state housing finance agencies. New 
paragraph (n) would also provide for counseling agencies and individual 
counselors to be in compliance with the certification requirements of 
the Dodd-Frank Act, no later than one year after the effective date of 
the final rule that will follow this proposed rule.
    For individual counselors to be certified, as now required under 
the Housing Counseling Program by the Dodd-Frank Act, HUD must put in 
place the examination required by statute. HUD recognizes that the 
examination, which is to be provided, must be one that is easily 
available to counselors in all 50 states and territories; be a 
meaningful test of the individual counselor's competency and knowledge 
base; and be made available in a manner that minimizes costs to the 
counselor or the nonprofit agency employing the counselor.
    HUD recognizes that costs will be incurred as a result of the 
written examination requirement, but HUD will strive to present the 
examination in the most cost-efficient way feasible. In pursuit of this 
objective, HUD reviewed several certification programs to find 
examinations and testing protocols similar to those required for the 
Housing Counseling Program, including reviewing the testing 
requirements currently in place for individual counselors providing 
counseling related to HUD's Home Equity Conversion Mortgage (HECM) 
program. Additionally, HUD is specifically exploring online testing. 
Several organizations and some states have established online testing 
of housing counselors.\5\ HUD recognizes the

[[Page 56629]]

convenience that an online or web-based examination would present. HUD 
believes that it can provide the examination at a cost that is 
reasonable and in line with the costs of training and testing offered 
by other organizations. HUD further addresses the cost of the 
examination under the heading of Executive Order 12866, in Section III, 
Findings and Certifications, of this preamble.
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    \5\ See, for example, NeighborWorks of America, http://www.nw.org/network/training/courses/online_testing.asp; National 
Association of Housing Counselors and Agencies, http://www.naccc.us/certification.php; State of Indiana Housing and Community 
Development Authority, http://www.in.gov/myihcda/files/Certification_Handbook_2012-2013_5-1-2012.pdf.
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 D. Requirements Relating to Housing Counseling Grant Funds

    Section 1444 of the Dodd-Frank Act prohibits HUD from providing 
grants for housing counseling assistance under section 106 of the 1968 
Act to any agency that has been convicted for a violation under Federal 
law relating to an election for Federal office, or any agency that 
employs an ``applicable individual'' who has been convicted for a 
violation under Federal law relating to an election of a Federal 
office. Examples of such offenses include election fraud, voter 
intimidation, and voter suppression. Section 1444 defines ``applicable 
individual'' to mean any individual who is (1) Employed by the 
organization in a permanent or temporary capacity; (2) contracted or 
retained by the organization; or (3) acting on behalf of, or with 
express or apparent authority of, the organization.
    Section 1445 of the Dodd-Frank Act prohibits HUD from distributing 
assistance for counseling activities to an agency unless the agency, or 
the individuals through which the agency provides counseling, has been 
certified by HUD as competent to provide counseling. Accordingly, the 
proposed rule reflects this prohibition, which will become effective, 
consistent with new paragraph (n) of Sec.  214.103, one year after the 
effective date of the final rule that will follow this proposed rule.
    Section 1449 of the Dodd-Frank Act sets forth specific provisions 
relating to a finding by HUD that an agency has misused grant funds. 
Such provisions require that an agency that has been found to have 
misused funds, within 12 months of the date of the determination of 
misuse, reimburse HUD for misused funds and return any unobligated 
grant funds and that such agency will be ineligible to receive housing 
counseling grant funds in the future.
    In accordance with these statutory provisions, new paragraphs (c) 
and (d) would be added to Sec.  214.311 to reflect the provisions of 
sections 1444 and 1449 of the Dodd-Frank Act, restricting the 
distribution of funds to housing counseling agencies that have been 
convicted for a violation under Federal law or having been found to 
misuse grant funds.

III. Findings and Certifications

Regulatory Review--Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility.
    Under Executive Order 12866 (Regulatory Planning and Review), a 
determination must be made whether a regulatory action is significant 
and, therefore, subject to review by the Office of Management and 
Budget (OMB) in accordance with the requirements of the order. This 
rule was determined to be a ``significant regulatory action'' as 
defined in section 3(f) of the Executive Order (although not an 
economically significant regulatory action, as provided under section 
3(f)(1) of the Executive Order).
    As discussed in this preamble, this proposed rule revises HUD's 
Housing Counseling Program regulations to adopt or reflect, through 
regulatory codification, requirements established in the Dodd-Frank 
Act, primarily the requirement that individual counselors be certified 
by HUD. Prior to the Dodd-Frank Act, HUD had the option, under the 
Housing Counseling statute to certify only housing counseling agencies, 
and to date, HUD has only certified/approved housing counseling 
agencies. The Dodd-Frank Act removed that option and required the 
certification of individual counselors. The Housing Counseling statute 
has always required that certification by HUD of either counseling 
agencies or individual counselors must be done through regulation. For 
certification of counselors, the Housing Counseling statute requires 
that the individual must take and pass an examination to be 
administered by HUD.
    Based on HUD's experience in establishing the testing requirements 
for HECM housing counselors, and in establishing other housing 
counseling training programs, HUD estimates that it can provide the 
required certification examination at a cost of approximately $500 per 
counselor. This estimate includes the cost of training and study 
materials, and is in line with fees charged by other private and public 
organizations administering counseling training and testing. For 
example, five housing counseling training programs, currently offered 
throughout the country by various nonprofit and state entities, provide 
training and testing at a cost ranging from $100 to $1,200 per 
counselor.\6\ Some programs offer training through a multiday, on-site 
classroom while others provide on-line resources for independent 
preparation. HUD anticipates offering its certification training and 
testing through web-based administration software, and consequently 
believes that the compliance cost of HUD's examination and associated 
training will be in the lower half of the $100 to $1,200 range.
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    \6\ These training programs include those of the National 
Foundation for Credit Counseling, NeighborWorks Center for 
Homeownership Education and Counseling, the Virginia Association of 
Housing Counselors, and the National Association of Certified Credit 
Counselors.
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    The statutory counseling certification requirement for HUD's 
Housing Counseling Program provides for HUD to contract with an 
appropriate entity to administer the examination. HUD's HECM counselor 
certification program may serve as a model for this requirement. 
NeighborWorks America was previously contracted to administer HUD's 
HECM counselor certification examination and currently administers 
HUD's HECM counselor training program.\7\ The cost to take the HECM 
examination is $100 and a list of examination topics, on-line study 
materials, and on-line practice exams are available at no cost by the 
test administrator. The examination is administered at proctored 
locations across the country.
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    \7\ See NeighborWorks America, ``HECM Counselor Resources,'' 
http://www.hecmcounselors.org/ (last visited Aug. 8, 2012).
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    HUD also reviewed the costs that housing counseling agencies are 
currently paying for their counselors to undergo some of the existing 
certifications, required by states or by organizations for membership 
in their organizations, and their own training requirements. Housing 
counseling agencies estimate that for each individual counselor to meet 
required training and certification requirements, the costs range from 
$490 to $7,000, with the average cost at $3,000. The higher cost 
includes paying travel expenses, salary while absent but

[[Page 56630]]

undertaking the test, training classes, examination fees, and lost 
earnings while the counselor is training and unable to provide 
counseling. The lower cost includes the cost of the examination and on-
line materials only. Since FY 2009, HUD has awarded approximately $13 
million in training grants to housing counseling intermediaries to 
provide tuition, travel, and lodging scholarships to housing counselors 
to help reduce training costs to agencies. Since FY 2009, over 12,600 
counselors have received training through support from these grants.
    Currently, there are approximately 2,500 HUD-approved housing 
counseling agencies with approximately 8,100 individual counselors. At 
an estimated cost of $500 \8\ per counselor to undertake training and 
the examination required for certification, the initial cost, 
nationwide, would total approximately $4,050,000. The amount of funds 
that have been available for training grants, as exemplified in the FY 
2009 funding year, may be used to help reduce the costs of training and 
the examination, if so elected by counseling agencies, which are the 
grantees under HUD's Housing Counseling NOFAs. In addition, HUD 
envisions working with existing certification programs, required by 
states or by organizations for membership in their organizations, to 
coordinate content, avoid duplication, and increase efficiency so 
training grants provided to HUD-approved housing counseling agencies 
will go further.
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    \8\ The estimate cost includes not only the cost of the 
examination, but the cost of the training to be provided by HUD. HUD 
found that all but one certification program offered for housing 
counseling includes training as part of the cost of the 
certification examination. Based on this finding and the statutory 
requirement that HUD provide training in connection with the 
certification, HUD's estimate is for the cost of the training and 
the cost of the examination combined. Based on other certification 
programs, the expectation is that individuals will select the 
training and the examination as a package. However, under this 
proposed rule, an individual would not be prohibited from foregoing 
the training and taking only the examination if the individual so 
chooses. HUD estimates that the cost of the examination alone would 
not exceed $200 and bases this estimate on the HECM test that HUD 
currently administers for HECM counselors, for which the cost is 
$100. Since the examination for housing counseling would be a new 
test to be administered by HUD and cover several counseling areas, 
not solely one subject, such as HECM, HUD estimates the cost of the 
examination alone would fall somewhere in the range of $100 to $200.
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    Other statutory changes to improve the effectiveness of housing 
counseling include increasing the breadth of counseling services so 
that they are comprehensive with respect to homeownership and rental 
counseling. As noted earlier, the statutory mandate to provide 
comprehensive homeownership and rental counseling is not a significant 
change for HUD's Housing Counseling Program. HUD's Housing Counseling 
Program currently provides comprehensive homeownership and rental 
counseling.\9\ The difference may be that an individual counselor, in 
contrast to multiple counseling agencies, must show competency (through 
passage of an examination) in identifying and understanding the breadth 
of homeownership and rental counseling services. Currently, a potential 
homebuyer or homeowner is likely to seek a housing counseling agency 
that specializes in a specific area and receive comprehensive 
counseling by a counselor in that specific area. As a result of 
increasing the breadth of counseling service knowledge, a housing 
counselor providing counseling on a specific area requested by the 
client would also be trained to identify cross-cutting issues that a 
client may not have identified when seeking out a specific counselor or 
during the intake process by the housing counseling agency. Therefore, 
the potential homebuyer or homeowner will have all potential needs 
assessed by one counselor, throughout the entire counseling process.
---------------------------------------------------------------------------

    \9\ See footnotes 3 and 4 in this preamble.
---------------------------------------------------------------------------

    The compliance costs of the rule are costs that primarily must be 
borne by the individual housing counselor, and an estimate of the costs 
has been discussed above. There are also costs to HUD; for example, in 
the development and administration of the examination, and any related 
training, and monitoring the counseling agencies for compliance. The 
benefits to the prospective homebuyer or existing homeowner may be the 
more efficient delivery of housing counseling services if, as a result 
of the certification process, one counselor may be able to assess all 
questions of the prospective homebuyer or homeowner. Additionally, the 
statutory mandate to certify individual counselors may further enhance 
the high regard of agencies and counselors participating in HUD's 
Housing Counseling Program.\10\
---------------------------------------------------------------------------

    \10\ The Obama administration referred individuals and families 
to HUD housing counseling agencies and counselors as part of the 
Making Home Affordable programs. See http://www.makinghomeaffordable.gov/get-started/housing-expert/Pages/default.aspx. See also http://www.hopenow.com.
---------------------------------------------------------------------------

    The compliance cost is expected to be $4 million in the first year 
and less in succeeding years, for an annualized compliance cost over 5 
years of $1.0 million ($0.96 million). The general benefits to the 
borrower and the market from housing counseling are as follows. In 
2011, a total of 126,534 loans were modified after seeking assistance 
from HUD housing counselors. Statistically, borrowers who received loan 
modifications after receiving post-purchase housing counseling had 
savings of $1,320 annually. In addition, foreclosures prevented as a 
result of housing counseling have an estimated social benefit of 
$40,730.\11\ Consequently, HUD expects the benefits of this rule to 
equal the projected compliance costs if 124 loan modifications are made 
and 122 foreclosures are avoided over 5 years as a result of this rule.
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    \11\ In a recent analysis HUD's Office of Policy Development and 
Research found that the total ``deadweight'' lost per foreclosure 
prevention cost is approximately $40,730. (See http://www.huduser.org/periodicals/cityscpe/vol14num3/Cityscape_Nov2012_impact_lim_sellers.pdf, at page 219.)
---------------------------------------------------------------------------

    Specific Request for Comment: HUD requests comment specifically on 
the compliance costs, social benefits, and avoidance of social costs as 
a result of this proposed rule.

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 proposed rule would revise the regulations governing HUD's Housing 
Counseling Program to reflect changes to the program made by the Dodd-
Frank Act, primarily the requirement that individual counselors be 
certified. As discussed in this preamble, to date, HUD's Housing 
Counseling Program, under 24 CFR part 214, has only approved or 
certified the counseling agencies.
    While, as a result of requirements imposed by the Dodd-Frank Act, 
the rule makes some definitional changes, and emphasizes that the 
homeownership counseling provided by HUD's housing counseling agencies 
must address the entire process of homeownership, and counseling 
agencies must provide materials on home inspection, the key change made 
to the Housing Counseling Program by this rule is the requirement, 
mandated by statute, to certify individual counselors as skilled to 
provide counseling in HUD's Housing Counseling Program.
    This rule does not impose the cost of certification of the 
individual counselors on counseling agencies. As

[[Page 56631]]

discussed earlier in this preamble, HUD is aware that some housing 
counseling agencies currently pay for their counselors to undergo some 
of the existing certifications required by states or by organizations 
for membership in their organizations and their own training 
requirements, but as with any professional licensing system for 
individuals (e.g., lawyers, doctors, accountants), the costs of 
certification rest with the individual. Therefore, the impact of 
certification to be a counselor in HUD's Housing Counseling Programs is 
primarily an impact on individuals, but HUD acknowledges that this 
requirement is not without impact on the counseling agencies. HUD 
recognizes that once this requirement is in place, counseling agencies 
will not be certified or approved by HUD if they do not have at least 
one certified counselor in their employ.
    HUD nevertheless submits that requirement for individual counselors 
to be certified, as proposed to be implemented by this rule, will not 
have a significant economic impact on small counseling agencies. The 
rule provides a one-year transition period after the effective date of 
the final rule for individual counselors to be certified. This one-year 
period coupled with the fact that housing counselors have been aware 
since enactment of the Dodd-Frank Act that they would have to be 
individually certified, provides ample notice of the need to be skilled 
in the required areas. HUD, through its FY 2013 Housing Counseling 
Training NOFA, is making FY 2013 funds available for training 
specifically directed to the statutorily specified areas for which 
certification is required.\12\ Additionally, through its annual Housing 
Counseling NOFAs, HUD-approved counseling agencies can use funds 
received through these NOFAs for training of their staff. Accordingly, 
for the time allowed for individual counselors to be certified and for 
the funding made available to assist in meeting the core areas 
specified by statute for certification, the undersigned certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities. Notwithstanding HUD's determination that this 
rule will not have a significant economic impact on a substantial 
number of small entities, HUD specifically invites comments regarding 
less burdensome alternatives to this rule, that will meet HUD's 
objectives as described in this preamble.
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    \12\ See http://portal.hud.gov/hudportal/documents/huddoc?id=2013htcnofa.pdf.
---------------------------------------------------------------------------

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has Federalism implications if the rule 
either imposes substantial direct compliance costs on state and local 
governments and is not required by statute, or the rule preempts state 
law, unless the agency meets the consultation and funding requirements 
of section 6 of the Executive Order. This proposed rule would not have 
Federalism implications and would not impose substantial direct 
compliance costs on state and local governments or preempt state law 
within the meaning of the Executive Order.

Environmental Impact

    This proposed 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).

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4; approved March 22, 1995) (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 proposed 
rule does not impose any Federal mandates on any state, local, or 
tribal government, or on the private sector, within the meaning of the 
UMRA.

Catalog of Federal Domestic Assistance

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

List of Subjects in 24 CFR Part 214

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

    Accordingly, for the reasons stated above, HUD proposes to amend 24 
CFR part 214 as follows:

PART 214--HOUSING COUNSELING PROGRAM

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

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

0
2. In Sec.  214.3, revise the definitions of ``HUD-approved housing 
counseling agency,'' and add alphabetically the definitions of 
``Homeownership counseling,'' ``HUD-certified housing counselor,'' 
``Nonprofit organization,'' ``Rental housing counseling,'' ``State,'' 
and ``Unit of general local government,'' to read as follows:


Sec.  214.3  Definitions.

* * * * *
    Homeownership counseling. Counseling related to homeownership and 
residential mortgage loans. When provided in connection with any HUD 
program, as specified in section 106(g) of the Housing and Urban 
Development Act of 1968 (12 U.S.C. 1701x) or such other programs as may 
be specified by HUD, by notice, homeownership counseling includes the 
decision to purchase a home, the selection and purchase of a home, 
issues arising during or affecting the period of ownership of a home 
(including refinancing, default, and foreclosure, and other financial 
decisions) and the sale or other disposition of a home.
* * * * *
    HUD-approved housing counseling agency. A private or public 
nonprofit organization that is exempt from taxation under section 
501(c) of the Internal Revenue Code of 1996; is certified by HUD, in 
accordance with this part and 106(e) of the Housing and Urban 
Development Act of 1968 (12 U.S.C. 1701x), to provide housing 
counseling services to clients directly or through an affiliate or 
branch; and meets the requirements set forth in this part.
* * * * *
    HUD-certified housing counselor. A counselor who has passed the 
requisite examination, is employed by a participating agency, and is 
certified by HUD as competent to provide housing counseling services 
pursuant to this part.
* * * * *
    Nonprofit organization. Shall have the meaning given in section 
104(5) of the Cranston-Gonzalez National Affordable Housing Act (42 
U.S.C. 12704(5)), except that subparagraph (D) of such section shall 
not apply.
* * * * *
    Rental housing counseling. Counseling related to rental of 
residential property, which may include

[[Page 56632]]

counseling regarding homeownership opportunities, as specified in 
section 106(g) of Housing and Urban Development Act of 1968 (12 U.S.C. 
1701x) or such other programs as may be specified by HUD, by notice, 
providing referrals for renters and prospective renters to entities 
providing counseling or counseling related to rental housing topics 
addressed in any HUD program.
* * * * *
    State. Each of the several States, the Commonwealth of Puerto Rico, 
the District of Columbia, the Commonwealth of the Northern Mariana 
Islands, Guam, the Virgin Islands, American Samoa, the Trust 
Territories of the Pacific, or any other possession of the United 
States.
* * * * *
    Unit of general local government. Any city, county, parish, town, 
township, borough, village, or any other general purpose political 
subdivision of a State.
0
3. In Sec.  214.103, revise paragraph (g)(2) and add paragraph (n), to 
read as follows:


Sec.  214.103  Approval criteria.

* * * * *
    (g) * * *
    (2) Staff. All staff providing homeownership counseling or rental 
housing counseling pertaining to HUD programs must be certified by HUD, 
and at least half the agency's counselors must have at least 6 months 
of experience in duties related to the agency's housing counseling 
program.
* * * * *
    (n) Certification of housing counseling agencies and housing 
counselors.
    (1) HUD will certify housing counseling agencies and housing 
counselors working for participating agencies as competent to provide 
homeownership and rental housing counseling, generally, upon successful 
passage of a standardized written examination administered by HUD, or 
on HUD's behalf, covering the subject provided in paragraph (n)(2) of 
this section.
    (2) In order to become HUD-certified, individual housing counselors 
must pass a standardized written examination to demonstrate competency 
to provide housing counseling 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.
    (3) Upon successful completion of the examination, an individual 
housing counselor working for a participating agency will be issued a 
``Certification of Competency.''
    (4) In order to become HUD-certified, a housing counseling agency 
must demonstrate that all counselors who provide counseling services 
for the agency are HUD-certified according to requirements in this 
section. Upon such demonstration, the housing counseling agency will be 
issued an agency ``Certification of Competency.''
    (5) Housing counseling agencies and housing counselors must be in 
compliance with requirements of paragraph (n) of this section by [DATE 
TO BE INSERTED AT FINAL RULE STAGE THAT IS 1 YEAR AFTER THE EFFECTIVE 
DATE OF THE FINAL RULE].
0
4. In Sec.  214.300, revise paragraph (b)(1) and add paragraphs (b)(3) 
and (b)(4), to read as follows:


Sec.  214.300  Counseling services.

* * * * *
    (b) * * *
    (1) Housing counseling that enables a client to make informed and 
reasonable decisions to achieve his or her housing goal.
* * * * *
    (3) Homeownership counseling, except for reverse mortgage 
counseling, shall address the entire process of homeownership, 
including, but not limited to, the decision to purchase a home, the 
selection and purchase of a home, the home inspection process, issues 
arising during or affecting the period of ownership of a home 
(including, but not limited to, refinancing, default, and foreclosure, 
and other financial decisions), and the sale or other disposition of a 
home.
    (4) As part of the home purchase counseling process, participating 
agencies or HUD-approved housing counselors shall provide clients with 
such materials as HUD may require regarding the availability and 
importance of obtaining an independent home inspection.
* * * * *
0
5. In Sec.  214.311, add paragraphs (c) and (d), to read as follows:


Sec.  214.311  Funding.

* * * * *
    (c) Limitation on distribution of funds. No funds made available 
under the Housing Counseling Program shall be distributed to:
    (1)(i) Any organization that has been convicted for a violation 
under Federal law relating to an election for Federal office or any 
organization that employs applicable individuals. For the purposes of 
this section, applicable individual means an individual who is:
    (A) Employed by the organization in a permanent or temporary 
capacity;
    (B) Contracted or retained by the organization; or
    (C) Acting on behalf of, or with the express or apparent authority 
of, the organization; and
    (D) Has been convicted for a violation under Federal law relating 
to an election for Federal office.
    (ii) For the purposes of this paragraph (c)(1), a violation under 
Federal law relating to an election for Federal office includes, but is 
not limited to, a violation of one or more of the following statutory 
provisions related to Federal election fraud, voter intimidation, and 
voter suppression: 18 U.S.C. 241-242, 245(b)(1)(A), 592-611, and 42 
U.S.C. 1973.
    (2) A housing counseling agency unless the agency, or the 
individuals through which the agency provides counseling, has been 
certified by HUD in accordance with Sec.  214.103(n).
    (d) Misuse of funds. If any participating agency that receives 
funds under the Housing Counseling Program is determined by HUD to have 
used funds in a manner that constitutes a material violation of 
applicable statutes and regulations, or any requirements or conditions 
under which such funds were provided:
    (1) HUD shall require that, within 12 months after the date of the 
determination of such misuse, the agency shall reimburse HUD for such 
misused amounts and return to HUD any such amounts that remain unused 
or unobligated for use; and
    (2) Such agency shall be ineligible, at any time after the date of 
such determination of misuse, to apply for or receive further funds 
under the Housing Counseling Program.
    (3) The remedies under paragraph (d) of this section are in 
addition to any other remedies that may be available under law.

    Dated: August 21, 2013.
Carol J. Galante,
Assistant Secretary for Housing--Federal Housing Commissioner.
[FR Doc. 2013-22229 Filed 9-12-13; 8:45 am]
BILLING CODE 4210-67-P