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Federal Register / Vol. 86, No. 126 / Tuesday, July 6, 2021 / Rules and Regulations 13891 undercuts HUDs justification to omit prior public comment.
Commenters also stated that the approach taken by HUD in this rulemaking is wholly inconsistent with the value of public input. Some commenters stated that if HUD goes on to implement regulations on guidance, HUD should follow normal notice-andcomment procedure beginning with a proposed rule and should better involve stakeholders, such as PHAs.
HUD Response: HUDs authority to issue the interim final rule without the public notice period relied on both the APA and 24 CFR part 10 authority to issue rules regarding internal procedures prior to receiving public comment. HUD appreciates and understands the commenters concerns, but HUD maintains that the interim final rule was procedural rather than substantive, because it affected only HUD internal procedures and imposed no obligations on parties outside the federal government. Specifically, the regulation required HUD to issue and maintain guidance documents in a certain manner but did not create any new obligations for parties other than HUD itself. HUD also notes that while it issued the interim final rule for immediate effect, it provided the opportunity for public comment that HUD has considered in issuing this final rule.
Comment: Changes could improve the interim final rule.
Some commenters generally supported the interim final rule but made recommendations for significant changes. One commenter supported the interim final rules provision that provided the public a procedure to challenge the agencys issuance of guidance but recommended that the interim final rule also provide for judicial review after the final disposition of a petition for withdrawal or modification of guidance documents. The commenter reasoned that without additional procedure, regulated entities would have difficulty establishing that an agencys determination on a challenged guidance document is a final agency action subject to APA review. The commenter recommended revising 11.6, by adding a paragraph that would provide, any agency pronouncement, response, or failure to respond pursuant to this section shall constitute final agency action under 5 U.S.C. 704 and shall be subject to review pursuant to 5 U.S.C.
702.
Other commenters offered revisions to 11.6, including adding provisions for the public to request clarification of existing guidance, reinstatement of old
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guidance, or creation of new guidance, and establishing a mechanism for expediting guidance when necessary.
Another commenter stated that the rule does not explain how new procedures, namely the petition process, will be accessible to people with disabilities and emphasized the importance of ensuring that people with disabilities are afforded equal opportunity to comment during public notice and comment periods. One commenter recommended extending the comment period for significant guidance to 60
days, instead of the existing 30 days, because significant guidance documents are likely to be complex in subject matter and scope.
HUD Response: HUD disagrees with these recommendations. Providing for judicial review after the final disposition of a petition for withdrawal or modification of guidance documents would create additional hurdles for HUDs issuance of guidance documents.
Similarly, providing the public a formal opportunity to request the issuance of new guidance or the reinstatement of rescinded guidance would be extremely time consuming, require the use of limited HUD resources, and impede HUDs ability to provide timely guidance, particularly in times of crisis.
Moreover, HUD believes that stakeholders already can and do question or request the revision of existing guidance, reinstatement of old guidance, or creation of new guidance.
HUD believes that engagement with the public in this informal manner effectively addresses the needs of HUD
stakeholders without the additional burden of creating a formal process as proposed.
President Bidens Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation, of January 20, 2021, revoking E.O. 13891
provides HUD the opportunity to remove 24 CFR part 11. Consideration of the comments received from the public provide HUD an additional basis for removing 24 CFR part 11.
IV. Findings and Certifications Regulatory ReviewExecutive Orders 12866 and 13563
Under E.O. 12866 Regulatory Planning and Review, a determination must be made regarding 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. E.O. 13563 Improving Regulations and Regulatory Review directs executive agencies to analyze regulations that are outmoded,
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ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. E.O.
13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public.
This rule was determined not to be a significant regulatory action, under section 3f of E.O. 12866 and therefore was not reviewed by OMB. This rule is also not a major rule under the Congressional Review Act 5 U.S.C. 801
et seq., as designated by the Office of Information and Regulatory Affairs OIRA.
Environmental Impact The 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 50.19c1, 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 The Unfunded Mandates Reform Act of 1995 2 U.S.C. 15311538 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 rule does not impose a Federal mandate on any state, local, or tribal government, or on the private sector, within the meaning of UMRA.
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 rule removes 24 CFR part 11 which would have required that HUD follow certain internal 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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