(dissenting):
I respectfully dissent. The Department of Housing and Urban Development (“HUD”) claims the right to violate its own regulations obliging it to give a 60-day period to the public within which to comment on proposed rules before they are issued in final form. Its justification for this violation of its own rules is the purported need for swift action. This argument is vitiated, however, by the fact that HUD itself created whatever “urgency” existed by its own sluggish internal consideration of the proposed rules over a period of nearly seven months. It is anomalous and contrary to the public interest for a public agency, after frittering away seven months on its inter*62nal reflection upon the advisability of a proposed rule, to conclude suddenly that it cannot spare 60 days to obtain the public’s views, comments and criticisms, which often lead to beneficial changes and revisions. I think we should decline to endorse HUD’s extraordinarily casual approach to the right of the public to comment on proposed rules before those rules are imposed on it. To uphold HUD’s action is to eliminate a valuable procedure and seriously weaken the usefulness of judicial review.
On August 13,1981, the Omnibus Budget Reconciliation Act of 1981 (“OBRA”) became law. One of its many provisions, § 322, mandated that rents for tenants in federally-assisted low-income housing be raised from 25% to 30% of their “monthly adjusted income.” OBRA § 322(a), 95 Stat. 357,400,42 U.S.C. § 1437a(a)(l). HUD, the agency charged with implementing this provision, was given considerable discretion in deciding how to do so. Although the rent increase technically was mandated to go into effect on October 1, 1981, HUD was given five years to implement the rent increase fully. OBRA § 322(i)(3). Indeed, HUD was given discretion to extend even that deadline if full implementation “would result in extraordinary hardship for any class of tenants.” Id. HUD was also given considerable leeway as to the manner in which it would implement the rent increase during the five-year period set by the statute. For current tenants, HUD could delay or phase in the rent increase if “immediate application would be impracticable, would violate the terms of existing leases, or would result in extraordinary hardship for any class of tenants.” Id. § 322(i)(l). For new tenants, HUD could likewise delay or phase in implementation if immediate rent increases would be “impracticable,” or if it would significantly reduce administrative costs to keep rents uniform between current and new tenants. Id. § 322(i)(2).
From August 1981 until early March 1982, HUD deliberated internally about how to implement the 5% rent increase. In early March 1982, HUD submitted a set of proposed rules to the Office of Management and Budget (“OMB”) for review. In late March 1982, OMB completed its review and HUD submitted the proposed rules to the House and Senate Banking Committees for review, as is required under 42 U.S.C. § 3535(o).
Following this congressional review, the rules were published on May 4, 1982 in the Federal Register. 47 Fed.Reg. 19120. The rules provided that rents would be increased 1% per year over five years for existing tenants, but would be increased 5% immediately for new tenants. This May 1982 publication in the Federal Register was the first time that the public was given either formal or informal notice of the proposed rules.
Although the new standard was nominally labeled an “interim rule,” id. at 19122, in fact it was a final rule: HUD stated that the rule would “become effective as soon as possible and prior to the receipt of public comment.” Id. (emphasis added). HUD did state that public comments “will be received for a 45-day period following publication,” id., but also stated that it was declining to permit public comment before publication of the final rule because the changes made by the rule “flow directly from legislative changes without additional exercise of discretion and because of the public interest in the implementation of the legislation, which became effective on October 1, 1981.” Id. On July 16, 1982, HUD announced that the new regulations would be effective August 1, 1982. 47 Fed.Reg. 30969. In short, since the rules were to go into effect regardless of public comment, the latter was obviously discouraged, even if made during the 45-day period.
Plaintiff Roy Williams, a current resident of federally-subsidized public housing in New York City, is legally blind and the sole parent of two children. On August 9,1982, he filed suit to enjoin the implementation of the rules. The New York City Housing Authority (“NYCHA”), although nominally a defendant, later joined in Williams’ claims against HUD as a cross-claimant. As the majority has described, the district court rejected the challenges of Williams and the NYCHA to the rules.
*63The majority finds that we are barred from reviewing HUD’s actions in implementing § 322 of OBRA by subsection (i)(3) of that section, which provides in pertinent part:
“The Secretary’s [1] actions and [2] determinations and [3] the procedures for making determinations pursuant to this subsection shall not be reviewable in any court.” (Bracketed numerals added).
The Supreme Court has repeatedly emphasized that such provisions purporting to bar judicial review of agency action must be construed narrowly, since they raise serious constitutional questions. See Johnson v. Robison, 415 U.S. 361, 366-67, 94 S.Ct. 1160, 1165, 39 L.Ed.2d 389 (1974); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 139-41, 87 S.Ct. 1507, 1510-11, 18 L.Ed.2d 681 (1967); see also Ralpho v. Bell, 569 F.2d 607, 617 (D.C.Cir.1977) (“[ijnterpre-tation of [provisions barring judicial review] should be guided ... by the recognition that unreviewability gives the executive ‘a standing invitation to disregard ... statutory requirements and to exceed the powers conferred’ .... ”).
The majority argues that what appellants are challenging is a “procedure for making determinations,” which is precluded by § 322. This loose statutory construction is inappropriate in the context of interpretation of a provision that blocks judicial review. In the context of § 322 of OBRA, “determination” clearly refers to fact finding, such as a determination whether or not immediate application of the rent increase to new tenants would be “impracticable.” § 322(i)(2). Appellants challenge neither HUD’s fact finding, nor its procedures for finding facts; nor do they challenge the substance of HUD’s “action” in raising rents.
What appellants do challenge is HUD’s “procedure for taking actions” — i.e., its procedure for making rules, which is conspicuously omitted from the unreviewable matters listed in § 322(i)(3) and therefore not precluded from being challenged. This reading of the judicial review provisions cannot be dismissed as “sheer sophistry” (Op. p. 61) but, on the contrary, is called for under Johnson v. Robison, supra; moreover, an insistence on proper procedure and attention to public comments is particularly warranted when an agency has unreviewa-ble substantive discretion. Since HUD has not presented “clear and convincing evidence” that Congress intended to bar review of HUD’s refusal to follow proper procedures in formulating rules under § 322, I would find that review is not precluded. See Abbott Laboratories, supra, 387 U.S. at 141, 87 S.Ct. at 1511.
The next question is whether HUD followed applicable regulations in promulgating the rent increase rules. HUD’s action here is governed by its own regulations which state that it is HUD’s policy “to afford the public not less than sixty days for submission of comments” before rules are published in final form and that HUD may omit public notice and comment if it determines “that notice and public procedure are impracticable, unnecessary or contrary to the public interest.” 24 C.F.R. § 10.1. These rules were promulgated in 1979 pursuant to an Executive Order of the President requiring agencies to improve their procedures for providing the public with an “early and meaningful” opportunity to comment on proposed agency rules. See Executive Order 12044, 43 Fed.Reg. 12662. This occurred after HUD had previously agreed in 1976 to “comply with rule making provisions of [the APA] with respect to all HUD programs and functions.” 41 Fed. Reg. 33910.
HUD argues that it may not be held to compliance with these published procedural requirements modeled after the APA. While not every internal agency rule is enforceable against an agency, see United States v. Caceres, 440 U.S. 741, 754 n. 18, 99 S.Ct. 1465, 1472 n. 18, 59 L.Ed.2d 733 (1979), it is well-established that regulations promulgated under statutory authority have the force and effect of law, see United States v. Nixon, 418 U.S. 683, 695-96, 94 S.Ct. 3090, 3101, 41 L.Ed.2d 1039 (1974), and *64that an agency is bound by its own formal, published regulations that protect important rights of the public. See Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39 L.Ed.2d 270 (1974); Vitarelli v. Seaton, 359 U.S. 535, 540-45, 79 S.Ct. 968, 973-75, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Pearce v. Director, Office of Workers’ Compensation, 647 F.2d 716, 726-27 (7th Cir.1981); compare American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 538-39, 90 S.Ct. 1288, 1292, 25 L.Ed.2d 547 (1970) (agency may waive internal rule designed only for “orderly transaction of business before it,” not for benefit of persons outside the agency). The right of public housing tenants to be informed of proposed changes in rules vitally affecting their lives surely qualifies under this standard, and HUD must therefore be held to compliance with its own procedural requirements.
It is undisputed that HUD failed to provide the 60-day notice and comment period called for by 24 C.F.R. Part 10.1. HUD defends its actions, however, by arguing that the exception in its rules for cases in which public comment would be “impracticable, unnecessary or contrary to the public interest” is applicable here. Such a defense is wholly unpersuasive. HUD gave two reasons for declining to listen to public reaction before promulgating the rent increase in final form. First, HUD stated that “this rule flow[s] directly from legislative changes without additional exercise of discretion.” 47 Fed.Reg. 19122. This is simply false; as noted above, Congress gave HUD considerable latitude in implementing the rent increase called for by § 322. See § 322(i)(1)-(3).
HUD’s second reason was that the “public interest” lay in immediate implementation of the rent increase. If such a conclu-sory statement were accepted as establishing an exception to the public comment rule, however, it would “swallow the rule.” Mobil Oil v. Department of Energy, 610 F.2d 796, 803 (Temp.Emer.Ct.App.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980). HUD was in no position to proclaim the need for expedition when it had itself dragged its feet for seven months to produce an extremely simple rule. See Consumers Union v. Sawhill, 393 F.Supp. 639, 641 (D.D.C.) (“[A]ny emergency which existed necessitating immediate [action] was created by the agency itself.”), affd., 523 F.2d 1404 (Em.App.1975).
Moreover, under the analogous provisions of the APA, 5 U.S.C. § 553(b)(B), exceptions to the requirement of a public comment period are permitted only in the narrowest of circumstances, such as when advance notice would adversely affect the market being regulated, see Nader v. Sawhill, 514 F.2d 1064, 1068-69 (Em.App.1975), or when the agency has a truly imminent statutory deadline, see Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877 (3d Cir.1982) (agency given 49 days to act); see also National Nutritional Foods Association v. Kennedy, 572 F.2d 377, 383-86 (2d Cir. 1978) (rejecting agency argument that notice and public comment were properly omitted under § 553(b)(B)). Indeed, several courts have rejected agency claims of exigent circumstances even in the face of a congressionally-imposed “tight schedule,” see, e.g., State of New Jersey v. EPA, 626 F.2d 1038, 1042-48 (D.C.Cir.1980); U.S. Steel Corp. v. EPA, 595 F.2d 207, 213, modified on other grounds, 598 F.2d 915 (5th Cir.1979); see also American Iron and Steel Institute v. EPA, 568 F.2d 284, 291-92 (3d Cir.1977). Since HUD has provided the court with no plausible reason why it could not have given the public the brief comment period to which it was entitled, I would not make an exception in the present case.1
*65Nor did the 45-day “comment period” permitted by HUD after it had already made up its mind satisfy the requirements of § 10.1. Once the final rule is issued, to have a period for comments is somewhat of a charade since all know that, the die having been cast, “the decisionmaker is likely to resist change.” Sharon Steel v. EPA, 597 F.2d 377, 381 (3d Cir.1979); State of New Jersey v. EPA, supra, 626 F.2d at 1049-50; Kollett v. Harris, 619 F.2d 134, 145 (1st Cir.1980).
I would therefore find that appellants are likely to succeed on the merits in their challenge to HUD’s rulemaking procedure. There remains a question whether they have shown irreparable harm. Although the district court did not make a final ruling on Williams’ claim of irreparable harm, it commented as follows on that issue:
“Although purely monetary harm does not usually provide a basis for equitable relief, it can have serious and irreparable corollary effects when low income persons are the injured parties. The threatened rent increase in this case could force plaintiff and others ... to either forgo basic necessities in order to make higher rental payments, on the one hand, or face eviction because of their inability to pay higher rent, on the other hand. In either case, the harm suffered by low-income tenants would be irreparable.” Opinion of 10/22/82 at 20.
I agree. HUD responds that if NYCHA adheres to its present plan for adjusting tenant rents, Williams’ rent may not be adjusted until February 1984. They therefore contend that any harm to Williams is speculative.
I disagree. The NYCHA is legally empowered to raise Williams’ rent on 30 days notice; moreover, HUD is exerting pressure on NYCHA to put the rent increase into effect immediately, and NYCHA risks sanctions for failing to do so. Although Williams may be spared for several months if he is fortunate, I agree with the observation of this Court in Carey v. Klutznick, 637 F.2d 834, 837 (2d Cir.1980), that “although the irreparable injury that [appellants] seek to assert [is] a ‘possibility,’ every irreparable injury is merely a possibility until it is actual and can no longer be averted.” Under these circumstances, I am sympathetic to Williams’ argument that the government should not be permitted, in litigation with poor and powerless citizens such as Williams, to evade review of its actions by arguments that any time a citizen may try to seek relief is the wrong time. Williams Reply Br. at 17.
For these reasons I would reverse the judgment of the district court and direct it to enjoin the implementation of HUD’s rent increase rules.
. The majority’s suggestion that this case is analogous to Philadelphia Citizens, supra, 669 F.2d 877 (3d Cir.1982), is surprising. That case involved the response of the Department of Health and Human Services (“HHS”) to the portions of OBRA that were relevant to that agency. Unlike in the present case, HHS had a strict deadline to meet in preparing regulations —49 days from the enactment of OBRA, which obviously precluded waiting 60 days for public comment. Id. at 883. Moreover, HHS, unlike HUD in the present case, actively sought infor*65mal comments from affected parties before issuing its regulations, see id. at 880, gave a lengthy explanation of why public comment was impracticable, see id. at 882 n. 4, and stated that it was “interested in comments and advice regarding changes which should be made” to the published rules, id. The eminent good faith of HHS in attempting to comply with notice-and-comment requirements is in sharp contrast to the conduct of HUD in the present case.