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DATES:

Federal Register / Vol. 86, No. 126 / Tuesday, July 6, 2021 / Rules and Regulations
Effective August 5, 2021.

FOR FURTHER INFORMATION CONTACT:

Aaron Santa Anna, Associate General Counsel, Office of Legislation and Regulations, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street SW, Room 10282, Washington, DC 20410
5000; telephone 202 4025300 this is not a toll-free telephone number.
Persons with hearing or speech impairments may access this number via TTY by calling the toll-free Federal Information Relay Service at 1800
8778339.
SUPPLEMENTARY INFORMATION:
I. Background
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A. Executive Order 13891 on Promoting the Rule of Law Through Improved Agency Guidance Documents On October 9, 2019 84 FR 55235, the President issued Executive Order E.O.
13891, Promoting the Rule of Law Through Improved Agency Guidance Documents. E.O. 13891 recognized that the Administrative Procedure Act 5
U.S.C. 551559 APA exempts interpretive rules, general statements of policy, or rules of agency organization, procedure or practice, except when required by statute, from the notice and comment requirements for rulemaking. 5 U.S.C. 553b. E.O.
13891 stated, however, that, in the view of the last administration, agencies have sometimes used this authority to issue guidance documents that regulate the public without following the notice and comment rulemaking procedures of the APA. As a result, E.O. 13891 required Federal agencies to issue regulations to codify processes and procedures for issuing guidance documents. Among other things, E.O. 13891 required that agency regulations establish procedures for modifying, withdrawing, and using guidance documents, including requiring notice and comment for significant guidance documents, and taking and responding to petitions from the public for withdrawal or modification of a particular guidance document.
B. HUDs Interim Final Rule In response to E.O. 13891, HUD
published an interim final rule on November 10, 2020 85 FR 71537 that established a new part 11 in title 24 of the CFR. The new part 11 required HUD
to follow certain procedures in issuing guidance documents. These procedures included: Establishing a single agency website where the public can find all HUD guidance in effect; OMB review of significant guidance; public comment on significant guidance; and a
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procedure for the public to request withdrawal or modification of a guidance document. In issuing its interim final rule, HUD determined that good cause existed to omit advanced public comment because the rule was limited to internal HUD procedures and did not impose new requirements on members of the public. The rule took effect on December 10, 2020.
Although HUD determined that good cause existed to publish its interim final rule prior to soliciting public comment, HUD provided for a 60-day public comment period. In response to its interim final rule, HUD received seven public comments which were mostly critical of, or recommended significant changes to, the interim final rule. A
summary of these comments and HUDs responses to them are provided in Section III of this document.
C. Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation of January 20, 2021
On January 20, 2021, President Biden issued E.O. 13992, Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation, which among other things, revoked E.O. 13891.
E.O. 13992 also directed agencies to promptly take steps to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof that implemented or enforced the Executive Orders revoked. E.O. 13992 states, It is the policy of the Administration to use available tools to confront the urgent challenges facing the Nation, including the coronavirus disease 2019 COVID
19 pandemic, economic recovery, racial justice, and climate change. To tackle these challenges effectively, executive departments and agencies agencies must be equipped with the flexibility to use robust regulatory action to address national priorities. This order revokes harmful policies and directives that threaten to frustrate the Federal Governments ability to confront these problems and empowers agencies to use appropriate regulatory tools to achieve these goals.
II. This Final Rule Given the revocation of E.O. 13891, and after considering the public comments HUD received in response to the interim final rule, HUD has decided to remove 24 CFR part 11. In reaching this conclusion, HUD concluded that the interim final rule deprives HUD of necessary flexibility to determine when and how to best issue guidance documents based on particular facts and circumstances, and unduly restricts HUDs ability to provide timely guidance on which the public can
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confidently rely. Notwithstanding this determination, HUD takes the opportunity in this rule to respond to public comments received in response to its interim final rule.
III. The Public Comments The comment period for HUDs interim final rule closed on January 11, 2021. HUD received seven public comments from various housing policy and legal interest groups, a law firm, and two public housing agencies PHAs. HUD appreciates the time that commenters took to review its interim final rule and provide helpful information and valuable comments and recommendations.
The Comments Generally Most commenters opposed the interim final rule and urged HUD to withdraw or rescind the rule and abandon codification of 24 CFR part 11. Most commenters stated that HUD
should encourage the facilitation and dissemination of guidance, particularly given the urgent need for federal response to current crises, such as the COVID19 pandemic and lack of affordable housing, and housing discrimination. These commenters stated that the rule would make it more difficult for HUD to quickly respond to these crises and fulfill its mission of creating strong, sustainable, inclusive communities.
A majority of the commenters also thought that the rule would create confusion among HUD stakeholders and the public. Commenters stated that the interim final rule would have a negative impact on the successful administration of HUDs programs, and would significantly delay each program offices ability to be responsive to emergencies and emerging questions and issues and increase the workload for HUD. Commenters also warned that the burdens and delays imposed by the interim final rule would negatively impact the ability of stakeholders such as PHAs, tenants, and advocacy groups to carry out their respective missions and may subject their programs to litigation.
Two commenters generally supported the interim final rule but offered recommendations for significant changes, such as expanding it to provide the public an opportunity to request the issuance of new guidance or the reinstatement of rescinded guidance.
One commenter recommended that HUD include an explicit judicial review
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