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Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Rules and Regulations
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II. Justification for Interim Rule Good Cause Under the Administrative Procedure Act In general, HUD publishes a rule for public comment in accordance with both the APA, 5 U.S.C. 553, and the agencys regulation on rulemaking at 24
CFR part 10. Both the APA and Part 10, however, provide for exceptions from that general rule where HUD finds good cause to omit advance notice of the opportunity for public comment. The good cause requirement is satisfied when prior public procedure is impracticable, unnecessary, or contrary to the public interest. 5 U.S.C.
553bB. In order to publish a rule for effect prior to receiving and responding to public comments i.e., an interim final rule, the agency must make a finding that good cause exists.
HUD has determined that good cause exists to promulgate this interim final rule because it is in the public interest to publish this rule without advance notice and public comment in light of the present circumstances, and that subjecting the rule to notice and comment prior to publication would be impracticable and unnecessary. HUDs determination is based on, among other things, a combination of the following considerations. This interim final rule rescinds the PCNC regulation, currently codified at 24 CFR parts 5, 91, 92, 570, 574, and 903. HUD finds that the PCNC
rule was promulgated improperly without notice and comment, and without sufficient explanation for its substantial departure from prior agency interpretations and judicial precedent concerning the AFFH obligation. As a result, the PCNC Rule creates substantial risks that reliance on the rules certifications by HUD funding recipients, many of which are in jurisdictions where caselaw is irreconcilable with the PCNC rule, may place them in jeopardy of violation of their statutory AFFH obligations, and, were HUD to accept these certifications, may place the agency at risk of violating its own statutory duty to affirmatively further fair housing. While the PCNC
rule fundamentally altered the regulatory landscape, this interim final rule is limited in scope and imposes no new requirements that have not already been the subject of prior notice and comment. It reinstates provisions that were in effect prior to the PCNC rules promulgation. Under the unique circumstances here, HUD has good cause to omit advance notice and public comment prior to this rule taking effect.
Notwithstanding these good cause determinations for this IFR interim final rule to take effect without advance
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notice and comment, HUD still requests and encourages public comments on all matters addressed in this rule.
Moreover, HUD recognizes that program participants may need some time to adjust to this restoration and may choose to seek assistance from HUD in doing so, and therefore delays the effective date until July 31, 2021. HUD
has determined this is the longest delay it can provide consistent with the need to reinstate AFFH certifications that help ensure program participants compliance with their statutory AFFH
obligations in their expenditure of billions of federal dollars prior to the date on which many program participants make their annual certifications of compliance. HUD thus requests comments within 30 days of publication so that it may consider public views prior to the effective date.
This Limited Rulemaking Is Consistent With Notice-and-Comment Principles, Because It Restores Provisions That Have Gone Through Notice and Comment While Rescinding Provisions That Have Not This limited rulemaking reinstates definitions and corresponding certifications from the 2015 AFFH rule and provides notice of the reinstatement of a voluntary process by which HUD
will assist program participants in complying with their AFFH obligations.
HUD previously promulgated these provisions after extensive notice-andcomment process, so they are familiar to HUD program participants. HUD
published a Notice of Proposed Rulemaking NPRM for its AFFH rule in 2013 and received over one thousand public comments. 78 FR 43709. HUD
reviewed and considered those comments and then promulgated the AFFH rule in 2015.9 In this interim final rule, HUD is reinstating definitions already promulgated in the 2015 rule, with a few technical changes to conform provisions that previously assumed the existence of mandatory fair housing 9 HUDs full response to public comment on the restored definitions is contained in the preamble to the original publication of the 2015 AFFH rule at 80 FR 42272. Cf. Citronelle-Mobile Gathering, Inc.
v. Gulf Oil Corp., 420 F. Supp. 162, 17071 S.D.
Ala. 1975, remanded on other grounds, 578 F.2d 1149 5th Cir. 1978 noting that the agency could have invoked good cause if it had been required to repromulgate its existing regulations because the regulations had previously been promulgated pursuant to notice and comment, stating, No real purpose would have been served by requiring the redundant solicitation of public comment. This had already been previously accorded for exactly the same regulation in question . . . Repromulgation would have required the administrative procedures be once more employed, necessitating delay and a lapse in regulatory enforcement. This would have served no useful purpose..

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planning process and other procedures, such as completing an AFH or AI, to the more limited structure of this interim final rule.
Reinstating these definitions and corresponding certifications prior to public notice and comment is also necessary because the PCNC rule provided no opportunity for the public to comment before comprehensively redefining the AFFH mandate and the content of corresponding certifications that funding recipients make on a regular basis. Where, as here, a familiar regulatory definition that has passed through extensive notice and comment scrutiny is available, HUD believes the public interest is disserved by requiring funding recipients to certify compliance to a definition that has not benefited from public comment.
As an initial matter, HUD now believes it is doubtful that PCNCs invocation of notice and comment waiver authority was appropriate. PCNC
invoked HUDs general regulatory waiver authority under 24 CFR 5.110 to waive its Part 10 regulations, which otherwise would have required noticeand-comment procedures, but in doing so it downplayed the statutory requirement that HUD maintain its Part 10 regulation, as well as the general principle that notice-and-comment rulemaking for major legal change best serves the public interest. A
longstanding statutory provision requires HUD to maintain its Part 10
requirements, i.e., to comply with notice-and-comment requirements.10 In the PCNC rule, HUD minimized the significance of this provision, stating that Congress did not abrogate the Secretarys independent statutory authority under 42 U.S.C. 3535q to waive regulations in specific circumstances. 85 FR 47904 FN 78.
HUD now believes that this was an overly restrictive reading of this provision that ignored Congresss clear intent to limit HUDs authority to eschew notice-and-comment requirements.
In any event, regardless of whether PCNCs reliance on the regulatory waiver to bypass notice-and-comment requirements was lawful, HUD believes it disserved the public interest such that there is a strong interest in immediately restoring a regulatory definition that has gone through notice-and-comment scrutiny and more sustained agency and public consideration. PCNC abandoned the agencys longstanding 10 See Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1998, Public Law 10565, 111 Stat. 1344, 1365, 208 Oct. 27, 1997.

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