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Federal Register / Vol. 86, No. 126 / Tuesday, July 6, 2021 / Rules and Regulations
that the interim final rule would ultimately lead to inconsistent interpretations of HUD guidance because the provision negates the purpose of issued guidance by inviting PHAs and owners to ignore it. Another commenter stated that if a guidance document, which PHAs have routinely incorporated into their policies for decades, is determined to have no legal effect or rescinded, PHAs will find themselves in limbo with no new replacement guidance.
One commenter stated that the interim final rule may adversely impact vulnerable populations and encourage discriminatory policies. For example, survivors of domestic violence, sexual assault, and stalking would be left without access to certain remedies and procedures established under guidance but not mentioned in statutes or regulations. According to the commenter, ignoring guidance on emergency transfers leaves survivors without a clear path to obtaining an emergency transfer, leaving them in unsafe situations for longer periods of time. The commenter also stated, by way of example, that people with disabilities rely on HUD guidance to determine where they can live with their assistance or emotional support animals and provide people with disabilities a greater security when confronting housing discrimination. A
commenter further asserted that by suggesting that PHAs or owners ignore HUD guidance, HUD encourages discriminatory policies against tenants with disabilities who need accommodations.
Several commenters stated that the process for public petition would reduce reliance on guidance documents because it permits repeated requests for recission of certain documents, and creates a constant and ongoing state of uncertainty about whether the guidance will continue in effect or be withdrawn or modified pursuant to a petition from the public. Other commenters stated that it is not clear how the review of a petition would operate or what remedies would be available if the public disagrees with a determination made by HUD in response to a petition.
One commenter focused on several other aspects of the interim final rule that the commenter said are unclear, including the description of the public participation requirement; whether any exceptions to OIRA review under 11.8
apply; how these exceptions interact with 11.3b; and the implications of the interim final rule on joint agency guidance. For the public participation requirement, the commenter referred to
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11.6b, and stated that stakeholders cannot discern when HUD is soliciting public input on potential significant guidance. Another commenter stated that the applicability of the good cause exception is unclear.
One commenter stated that under the interim final rule, it is unclear how HUD would notify the public when significant guidance documents are available for comment, for example, whether HUD would publish the significant guidance documents in the Federal Register or post an open letter on its website. The commenter requested that HUD explain how it would choose between outreach methods.
Commenters also stated that the interim final rule lacked clarity as to whether it applies to guidance retroactively and sought clarification on whether existing guidance documents remain in effect. One commenter recommended that the scope of the interim final rule be limited to future guidance and allow current guidance to remain in place until the issuance of newly issued guidance documents.
HUD Response: HUD agrees that the processes outlined in the interim final rule lack clarity and would likely lead to the inconsistent application of HUDs programs. HUD also agrees that the use of guidance is helpful to supplement regulatory and statutory requirements and that HUD does not want to suggest, as a commenter stated, that guidance documents can be ignored. HUD agrees that HUD guidance documents that aim to prohibit and prevent discrimination against persons with disabilities and other protected classes should be reasonably relied on by stakeholders.
As for the ambiguity pointed out by commenters on procedures and processes for public petitions, identification of significant guidance for public comment, and retroactivity of the rule, HUD agrees that the rule provided minimal guidance to the public on how HUD would address those provisions and believes this further supports the determination to remove 24 CFR part 11.
Comment: The new indexed website portal is misguided.
One commenter supported HUDs use of the indexed guidance portal, but many had questions about it. A
commenter questioned whether HUD
has the operational capacity to establish and maintain a single, searchable, indexed website as required by the interim final rule. The commenter stated that although the interim final rule went into effect on December 10, 2020, it appears no such guidance website has been established. The commenter also
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asked what HUD intends to do with the guidance documents not posted on this new guidance website, or what will happen with guidance documents that are removed from the website.
Other commenters questioned whether the guidance portal will achieve the goal of making program policies more transparent. One commenter specifically noted that separating guidance documents from other types of documents such as, NOFAs, legal briefs, and opinions makes program administration and policies less transparent, especially since it is not clear what a guidance document is under the interim final rule. The commenter also questioned what HUD meant by describing the guidance portal as a single, accessible source of information for HUD
programs and policies. The commenter recommended that it would be better to organize relevant documents of all types by program and subject matter, rather than by document type.
Another commenter asked whether PHAs or members of the public could challenge HUDs decision to include or not include a guidance document on its website. The commenter noted that stakeholders should have a formal opportunity to inform HUD if previously-issued helpful guidance has been omitted from the guidance website. The commenter also recommended that HUD include on the portal cross-references to other federal agencies guidance documents which potentially impact PHAs, such as, the Federal Highway Administrations guidance on relocation under the Uniform Relocation Assistance and Real Property Acquisition Act.
HUD Response: HUD will continue to disseminate and provide guidance documents pertaining to specific programs and agrees that continuing to organize documents by program type and subject matter may be helpful to PHAs and others using HUD programs.
At the same time, it will continue to pursue ways to make its guidance documents more accessible to the public.
Comment: HUD lacked good cause to bypass the APAs notice-and-comment procedures.
Several commenters questioned HUDs authority to publish the interim final rule without first seeking public comment, noting that HUD did not adequately establish good cause to issue the rule. Commenters stated that no emergency or exigency existed to justify application of the good cause exception.
These commenters said the fact that HUD issued its interim final rule more than a year after the issuance of E.O.

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