Implementing Executive Order 13992, Revocation of Certain Executive Orders Concerning Federal Regulation, 35391-35396 [2021-14019]

Download as PDF 35391 Federal Register / Vol. 86, No. 126 / Tuesday, July 6, 2021 / Rules and Regulations PART 744—[AMENDED] 1. The authority citation for 15 CFR part 744 continues to read as follows: ■ Authority: 50 U.S.C. 4801–4852; 50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 Country CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice of September 18, 2020, 85 FR 59641 (September 22, 2020); Notice of November 12, 2020, 85 FR 72897 (November 13, 2020). 2. Supplement No. 4 to part 744 is amended under BURMA by: ■ a. Adding in alphabetical order an entry for ‘‘King Royal Technologies Co., Ltd.’’; ■ License requirement Entity * * BURMA ............ * Corner of Ahlone Road and Strand Road, Ahlone Township, Yangon, Burma. * * Myanmar Wanbao Mining Copper, Ltd., Yangon Office 70 (I)Bo Chein Street Pyay Road, Hlaing Township, Yangon, Burma. Myanmar Yang Tse Copper, Ltd., 70/I, Bo Chein St., Ward (11), Hlaing, Yangon, Burma. Wanbao Mining, Ltd., 70 Bo Chain Ln, Yangon, Burma. * * * * * * Matthew S. Borman, Deputy Assistant Secretary for Export Administration. [FR Doc. 2021–14367 Filed 7–2–21; 8:45 am] jbell on DSKJLSW7X2PROD with RULES * * All items subject to the EAR. (See § 744.11 of the EAR). * * Presumption of denial ...... * 86 FR [INSERT FR PAGE NUMBER AND July 6, 2021]. All items subject to the EAR. (See § 744.11 of the EAR). All items subject to the EAR. (See § 744.11 of the EAR). Presumption of denial ...... 86 FR [INSERT FR PAGE NUMBER AND July 6, 2021]. 86 FR [INSERT FR PAGE NUMBER AND July 6, 2021]. Presumption of denial ...... * 24 CFR Part 11 [Docket No. FR–6192–F–02] Office of General Counsel, Final rule. On November 10, 2020, the U.S. Department of Housing and Urban Development (HUD, or the Department) published an interim final rule that implemented Executive Order 13891, ‘‘Promoting the Rule of Law Through PO 00000 * * 86 FR 13180, 3/8/2021. 86 FR [INSERT FR PAGE NUMBER AND July 6, 2021]. SUMMARY: Jkt 253001 Federal Register citation * * Presumption of denial ...... HUD. 17:33 Jul 02, 2021 * * For all items subject to the EAR. (See § 744.11 of the EAR). Implementing Executive Order 13992, Revocation of Certain Executive Orders Concerning Federal Regulation VerDate Sep<11>2014 * * 86 FR [INSERT FR PAGE NUMBER AND July 6, 2021]. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT ACTION: * * * Presumption of denial ...... * AGENCY: * * RIN 2501–AD93 BILLING CODE 3510–33–P * * All items subject to the EAR. (See § 744.11 of the EAR). * * Supplement No. 4 to Part 744—Entity List License review policy * * * King Royal Technologies Co., Ltd., a.k.a., the following one alias: —KRT. 4, Min Dhama Rd., Shwe Gabar 6th St, Shwe Gabar Housing, Mayangone, Yangon , Burma; and Room 4 Shwe Gabar 6th Yangon, Burma. * * Myanmar Economic Corporation, a.k.a., the following one alias: —MEC. b. Revising the listing for ‘‘Myanmar Economic Corporation’’; and ■ c. Adding in alphabetical order entries for ‘‘Myanmar Wanbao Mining Copper, Ltd.,’’ ‘‘Myanmar Yang Tse Copper, Ltd.,’’ and ‘‘Wanbao Mining, Ltd.’’. The additions and revision read as follows: ■ Frm 00005 Fmt 4700 Sfmt 4700 * * Improved Agency Guidance Documents.’’ This order required Federal agencies to publish regulations to codify processes and procedures for issuing guidance documents. HUD created new regulations that outlined HUD policy and procedures for issuing guidance documents. On January 20, 2021, President Biden issued Executive Order 13992, ‘‘Revocation of Certain Executive Orders Concerning Federal Regulation’’ which, among other things, revoked Executive Order 13891. After considering the public comments HUD received in response to its interim final rule and given the revocation of Executive Order 13891, this final rule removes the regulations HUD created in January. E:\FR\FM\06JYR1.SGM 06JYR1 35392 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) 402–5300 (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 1–800– 877–8339. SUPPLEMENTARY INFORMATION: I. Background jbell on DSKJLSW7X2PROD with RULES 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. 551–559) (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. 553(b)). 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. HUD’s 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 VerDate Sep<11>2014 17:33 Jul 02, 2021 Jkt 253001 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 HUD’s 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 Government’s 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 HUD’s ability to provide timely guidance on which the public can PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 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 HUD’s 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 COVID–19 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 HUD’s programs,’’ and would ‘‘significantly delay each program office’s 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 E:\FR\FM\06JYR1.SGM 06JYR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 86, No. 126 / Tuesday, July 6, 2021 / Rules and Regulations provision to make it clear when review of a document becomes final to permit an interested party to seek redress from the courts. Comment: The Interim final rule’s procedural requirements will delay the issuance of guidance and limit HUD’s flexibility in issuing guidance. Commenters expressed concern with the review of HUD guidance by the Office of Information and Regulatory Affairs (OIRA) and the need for HUD to receive and review public comments on significant guidance. One commenter stated that OIRA is a small office with a heavy workload that is slow to formally review proposed and final rules submitted by HUD. The commenter stated that adding the review of many HUD guidance documents to OIRA’s workload would cause significant delays in the issuance of both HUD’s guidance documents and its rules issued under the Administrative Procedure Act. Another commenter stated that ‘‘applying such procedures to sub-regulatory guidance creates unnecessary and burdensome bureaucracy.’’ Other commenters said that the review, approval, and signature process for significant guidance ‘‘would hamper [HUD’s] ability to act nimbly to issue guidance on key issues.’’ Finally, one commenter noted that the rule would not only delay, but ultimately prevent, the dissemination of guidance. Commenters also stated that allowing petitions to modify or rescind guidance documents and the requirement for HUD to respond to each petition in writing, would drain scarce agency resources and hamper HUD’s ability to issue important guidance. One commenter stated that the process of permitting HUD to issue a coordinated response to similar petitions is insufficient to address delay issues. The commenter further said that HUD would be ‘‘doing the work’’ for petitioners with inadequate submissions ‘‘by laying out a roadmap and effectively crafting arguments for petitioners to have their petitions successfully adjudicated.’’ Another commenter added that the ‘‘petition mechanism will likely confuse funding recipients,’’ which in turn would create more work for HUD staff and delay day-to-day programmatic decision-making. The commenter also noted that ‘‘the interim final rule will strip authority from the career experts who normally develop guidance . . . and place day-to-day decisions directly into the hands of non-experts’’. HUD Response: HUD agrees that the timely dissemination of guidance documents is important to the successful administration and consistent implementation of its VerDate Sep<11>2014 16:11 Jul 02, 2021 Jkt 253001 programs. In support of this policy, HUD must have flexibility to quickly issue guidance to further the implementation of HUD’s programs without additional barriers. As commenters noted, applying the notice and comment process to significant guidance documents would unnecessarily detract from HUD’s ability to respond to the needs of its stakeholders and adversely impact its ability to issue regulations under the APA by diverting HUD and OMB resources away from rulemaking processes. In addition, HUD currently seeks input from the public on many of its guidance documents and often issues guidance documents in response to such input and frequently asked questions. Similarly, HUD agrees that the petition process would cause delay in HUD’s ability to disseminate guidance documents. Furthermore, HUD agrees that there is no need to codify such a requirement because HUD can and does already receive requests from the public which it considers when issuing, updating, and rescinding guidance. Comment: The ambiguity of the terms used in the interim final rule make the scope of the rule unclear. Commenters stated that the interim final rule lacks clarity, uses ambiguous terms, and creates general implementation issues. Many commenters stated that the interim final rule does not provide clear definitions and does not clarify which types of communication are subject to the rule. For example, commenters noted that the interim final rule’s definition of what constitutes ‘‘guidance’’ is vague and makes the scope of the rule unclear. One commenter noted that the definition of ‘‘guidance’’ could be read broadly enough to include ‘‘virtually all written communications HUD delivers to stakeholders.’’ One commenter found the definition of guidance lacking and recommended that legal opinions directed to parties about circumstance-specific questions and Notices of Funding Availability (NOFAs) 1 be added to the definition of guidance documents. The commenter suggested that legal opinions are helpful to more than a single PHA facing similar factual scenarios. Commenters also stated that the definition of ‘‘significant guidance’’ is 1 HUD currently uses the term Notices of Funding Opportunity or ‘‘NOFO’’ for documents that would previously have been referred to as NOFAs. This change is based on the terminology used in Office of Management and Budget Management in its Guidance for Grants and Agreements (85 FR 49506, August 13, 2020). However, following the terminology used in the public comments, this document uses the term ‘‘NOFA’’ throughout. PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 35393 unclear, overly broad, and susceptible to variance. One commenter stated that terms used in the definition of ‘‘significant guidance,’’ such as ‘‘serious inconsistency’’ or ‘‘interference’’ with another agency, are so vague that ‘‘if [the interim final rule is] interpreted broadly, nearly every piece of guidance not explicitly exempted from being considered significant guidance will be subject to the burdensome OIRA review and public comment process.’’ The commenter also noted the lack of explanation for how economic impact analyses would be conducted for significant guidance, and the apparent lack of public access to such analyses. HUD Response: HUD agrees that the terms and definitions used by the interim final rule lack clarity and could lead to confusion and inconsistent implementation of HUD’s programs. HUD appreciates the commenters’ recommendations regarding legal opinions, but each legal opinion is party- and fact-specific, and HUD does not believe that they can be made generally applicable to other similarly situated parties. As for the NOFA process, PHAs and other entities are permitted to follow-up with HUD with questions regarding NOFAs and provide feedback for future NOFAs regardless of the language in part 11. Lastly, HUD agrees with public commenters that the definitions of ‘‘guidance’’ and ‘‘significant guidance’’ could be interpreted broadly and doing so would make issuing guidance challenging. HUD notes that the definition of ‘‘significant guidance’’ incorporated in the interim final rule mirrors the definition in E.O. 12866 (Regulatory Planning and Review) for ‘‘significant regulatory action’’ and includes ‘‘novel legal or policy issues’’ which challenges articulating a specific definition. Notwithstanding, the requirement that HUD provide an economic analysis for guidance that rises to the level of ‘‘significant regulatory action’’ creates additional challenges to the Department’s ability to timely issue guidance and outweighs any benefit resulting from the interim final rule. Comment: The interim final rule creates uncertainty. Commenters stated that the uncertainty created by the interim final rule would negatively affect HUD constituencies that routinely rely on HUD guidance, including tenants, advocates, owners, vulnerable populations, and PHAs. One commenter stated that HUD guidance is undermined by the provision noting that ‘‘the authority is nonbinding and unenforceable.’’ The commenter stated E:\FR\FM\06JYR1.SGM 06JYR1 jbell on DSKJLSW7X2PROD with RULES 35394 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 ‘‘create[s] 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 § 11.3(b); and the implications of the interim final rule on joint agency guidance. For the public participation requirement, the commenter referred to VerDate Sep<11>2014 16:11 Jul 02, 2021 Jkt 253001 § 11.6(b), 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 HUD’s 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 HUD’s 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 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 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 HUD’s 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 Administration’s 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 APA’s notice-and-comment procedures. Several commenters questioned HUD’s 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. E:\FR\FM\06JYR1.SGM 06JYR1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 86, No. 126 / Tuesday, July 6, 2021 / Rules and Regulations 13891 undercuts HUD’s 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: HUD’s 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 rule’s provision that provided the public a procedure to challenge the agency’s 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 agency’s 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, ‘‘[a]ny 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 VerDate Sep<11>2014 16:11 Jul 02, 2021 Jkt 253001 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 HUD’s 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 HUD’s 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 Biden’s ‘‘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 Review—Executive 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, PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 35395 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 3(f) 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 50.19(c)(1), 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. 1531–1538) (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 E:\FR\FM\06JYR1.SGM 06JYR1 35396 Federal Register / Vol. 86, No. 126 / Tuesday, July 6, 2021 / Rules and Regulations procedure for the public to request withdrawal or modification of a guidance document. Removal of these procedures imposes no significant economic impact on a substantial number of small entities. Therefore, the undersigned certifies that this rule will not have a significant impact on a substantial number of small entities. Executive Order 13132, Federalism E.O. 13132 (entitled ‘‘Federalism’’) prohibits an agency from publishing any rule that has federalism implications if the rule either: (1) Imposes substantial direct compliance costs on State and local governments and is not required by statute, or (2) preempts State law, unless the agency meets the consultation and funding requirements of Section 6 of the E.O. This Interim final rule does not have federalism implications and does not impose substantial direct compliance costs on State and local governments nor preempt state law within the meaning of the E.O. List of Subjects in 24 CFR Part 11 Administrative practice and procedure. PART 11 [REMOVED] Accordingly, for the reasons described in the preamble and under the authority of 42 U.S.C. 3535(d), the U.S. Department of Housing and Urban Development removes 24 CFR part 11. ■ Dated: June 24, 2021. Marcia L. Fudge, Secretary. [FR Doc. 2021–14019 Filed 7–2–21; 8:45 am] BILLING CODE 4210–67–P DEPARTMENT OF THE TREASURY Office of the Secretary 31 CFR Part 1 RIN 1505–AC73 Privacy Act; Special Inspector General for Pandemic Recovery Departmental Offices, Department of the Treasury. ACTION: Final rule. AGENCY: In accordance with the requirements of the Privacy Act of 1974, as amended, the Department of the Treasury, Departmental Offices (DO), is issuing a final rule to amend its regulations to exempt portion of the following new systems of records maintained by the Special Inspector General for Pandemic Recovery (SIGPR) jbell on DSKJLSW7X2PROD with RULES SUMMARY: VerDate Sep<11>2014 16:11 Jul 02, 2021 Jkt 253001 from certain provisions of the Privacy Act. The exemption is intended to comply with the legal prohibitions against the disclosure of certain kinds of information and to protect certain information maintained in this system of records. DATES: Effective July 6, 2021. FOR FURTHER INFORMATION CONTACT: For questions about this notice and privacy issues, contact: Deputy Assistant Secretary for Privacy, Transparency, and Records at U.S. Department of the Treasury, 1500 Pennsylvania Avenue NW, Washington, DC 20220; telephone: (202) 622–5710. SUPPLEMENTARY INFORMATION: Background SIGPR was established by the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020. SIGPR has the duty to conduct, supervise, and coordinate audits, evaluations, and investigations of the making, purchase, management, and sale of loans, loan guarantees, and other investments made by the Secretary of the Treasury under programs established by the Secretary, as authorized by Section 4018(c) of the CARES Act, and the management by the Secretary of programs, as authorized by Section 4018(c) of the CARES Act. SIGPR’s duties and responsibilities are set forth in Section 4018 of the CARES Act, and in the Inspector General Act of 1978, 5 U.S.C. app. 3. SIGPR plans to create these systems of records to facilitate SIGPR’s audits, evaluations, investigations, and other operations to (1) promote economy, efficiency, and effectiveness in the administration of such programs; (2) prevent and detect fraud and abuse in the programs and operations within its jurisdiction; and (3) keep the head of the establishment and the Congress fully informed about problems and deficiencies relating to the administration of such programs and operations and the necessity for and progress of corrective action. Treasury is publishing separately the notice of the new system of records to be maintained by SIGPR. Under 5 U.S.C. 552a(j)(2) and (k)(2), the head of a federal agency may promulgate rules to exempt a system of records from certain provisions of 5 U.S.C. 552a if the system of records contains investigatory materials compiled for law enforcement purposes. Pursuant to these provisions, Treasury exempts the following system of records from 5 U.S.C. 552a (c)(3), (c)(4), (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g) of the Privacy Act: PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 SIGPR .420—Audit and Evaluations Records SIGPR .421—Case Management System and Investigative Records SIGPR .423—Legal Records The following are the reasons the investigatory materials contained in the above-referenced systems of records maintained by SIGPR may be exempted from various provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2) and (k)(2): (1) Exempted from 5 U.S.C. 552a(e)(4)(G) and (f)(l) (Agency Requirements and Rules) because release would give individuals an opportunity to learn whether they have been identified as suspects or subjects of investigation. As further described in the following paragraph, access to such knowledge may impair the ability of the Department of the Treasury and SIGPR (the Department/SIGPR) to carry out its respective missions, since individuals could: (i) Take steps to avoid detection; (ii) Inform associates that an investigation is in progress; (iii) Learn the nature of the investigation; (iv) Learn whether they are suspects or, instead, have been identified as alleged law violators; (v) Begin, continue, or resume illegal conduct upon learning that they are not identified in the system of records; or (vi) Destroy evidence needed to prove the violation. (2) Exempted from 5 U.S.C. 552a(d)(1), (e)(4)(H) and (f)(2), (3) and (5) (Access to Records and Agency Requirements and Rules) because release might compromise the Department’s/SIGPR’s ability to provide useful tactical and strategic information to law enforcement agencies by: (i) Permitting access to records contained in the systems of records such that it might provide information concerning the nature of current investigations and enable possible violators to avoid detection or apprehension by: (A) Allowing the discovery of facts that could form the basis for violators’ arrests; (B) Enabling violators to destroy or alter evidence of alleged criminal conduct that could form the basis for arrest; and (C) Using knowledge of the status of criminal investigations to delay the commission of a crime or commit a crime at a location that might not be under surveillance. (ii) Permitting access to either ongoing or closed investigative files might also reveal investigative techniques and E:\FR\FM\06JYR1.SGM 06JYR1

Agencies

[Federal Register Volume 86, Number 126 (Tuesday, July 6, 2021)]
[Rules and Regulations]
[Pages 35391-35396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14019]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 11

[Docket No. FR-6192-F-02]
RIN 2501-AD93


Implementing Executive Order 13992, Revocation of Certain 
Executive Orders Concerning Federal Regulation

AGENCY: Office of General Counsel, HUD.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: On November 10, 2020, the U.S. Department of Housing and Urban 
Development (HUD, or the Department) published an interim final rule 
that implemented Executive Order 13891, ``Promoting the Rule of Law 
Through Improved Agency Guidance Documents.'' This order required 
Federal agencies to publish regulations to codify processes and 
procedures for issuing guidance documents. HUD created new regulations 
that outlined HUD policy and procedures for issuing guidance documents. 
On January 20, 2021, President Biden issued Executive Order 13992, 
``Revocation of Certain Executive Orders Concerning Federal 
Regulation'' which, among other things, revoked Executive Order 13891. 
After considering the public comments HUD received in response to its 
interim final rule and given the revocation of Executive Order 13891, 
this final rule removes the regulations HUD created in January.

[[Page 35392]]


DATES: 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) 402-
5300 (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 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

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. 551-559) (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. 553(b)). 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. HUD's 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 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 HUD's 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 Government's 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 HUD's 
ability to provide timely guidance on which the public can 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 HUD's 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 COVID-
19 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 HUD's programs,'' and would 
``significantly delay each program office's 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

[[Page 35393]]

provision to make it clear when review of a document becomes final to 
permit an interested party to seek redress from the courts.
    Comment: The Interim final rule's procedural requirements will 
delay the issuance of guidance and limit HUD's flexibility in issuing 
guidance.
    Commenters expressed concern with the review of HUD guidance by the 
Office of Information and Regulatory Affairs (OIRA) and the need for 
HUD to receive and review public comments on significant guidance. One 
commenter stated that OIRA is a small office with a heavy workload that 
is slow to formally review proposed and final rules submitted by HUD. 
The commenter stated that adding the review of many HUD guidance 
documents to OIRA's workload would cause significant delays in the 
issuance of both HUD's guidance documents and its rules issued under 
the Administrative Procedure Act. Another commenter stated that 
``applying such procedures to sub-regulatory guidance creates 
unnecessary and burdensome bureaucracy.'' Other commenters said that 
the review, approval, and signature process for significant guidance 
``would hamper [HUD's] ability to act nimbly to issue guidance on key 
issues.'' Finally, one commenter noted that the rule would not only 
delay, but ultimately prevent, the dissemination of guidance.
    Commenters also stated that allowing petitions to modify or rescind 
guidance documents and the requirement for HUD to respond to each 
petition in writing, would drain scarce agency resources and hamper 
HUD's ability to issue important guidance. One commenter stated that 
the process of permitting HUD to issue a coordinated response to 
similar petitions is insufficient to address delay issues. The 
commenter further said that HUD would be ``doing the work'' for 
petitioners with inadequate submissions ``by laying out a roadmap and 
effectively crafting arguments for petitioners to have their petitions 
successfully adjudicated.'' Another commenter added that the ``petition 
mechanism will likely confuse funding recipients,'' which in turn would 
create more work for HUD staff and delay day-to-day programmatic 
decision-making. The commenter also noted that ``the interim final rule 
will strip authority from the career experts who normally develop 
guidance . . . and place day-to-day decisions directly into the hands 
of non-experts''.
    HUD Response: HUD agrees that the timely dissemination of guidance 
documents is important to the successful administration and consistent 
implementation of its programs. In support of this policy, HUD must 
have flexibility to quickly issue guidance to further the 
implementation of HUD's programs without additional barriers. As 
commenters noted, applying the notice and comment process to 
significant guidance documents would unnecessarily detract from HUD's 
ability to respond to the needs of its stakeholders and adversely 
impact its ability to issue regulations under the APA by diverting HUD 
and OMB resources away from rulemaking processes. In addition, HUD 
currently seeks input from the public on many of its guidance documents 
and often issues guidance documents in response to such input and 
frequently asked questions. Similarly, HUD agrees that the petition 
process would cause delay in HUD's ability to disseminate guidance 
documents. Furthermore, HUD agrees that there is no need to codify such 
a requirement because HUD can and does already receive requests from 
the public which it considers when issuing, updating, and rescinding 
guidance.
    Comment: The ambiguity of the terms used in the interim final rule 
make the scope of the rule unclear.
    Commenters stated that the interim final rule lacks clarity, uses 
ambiguous terms, and creates general implementation issues. Many 
commenters stated that the interim final rule does not provide clear 
definitions and does not clarify which types of communication are 
subject to the rule. For example, commenters noted that the interim 
final rule's definition of what constitutes ``guidance'' is vague and 
makes the scope of the rule unclear. One commenter noted that the 
definition of ``guidance'' could be read broadly enough to include 
``virtually all written communications HUD delivers to stakeholders.''
    One commenter found the definition of guidance lacking and 
recommended that legal opinions directed to parties about circumstance-
specific questions and Notices of Funding Availability (NOFAs) \1\ be 
added to the definition of guidance documents. The commenter suggested 
that legal opinions are helpful to more than a single PHA facing 
similar factual scenarios.
---------------------------------------------------------------------------

    \1\ HUD currently uses the term Notices of Funding Opportunity 
or ``NOFO'' for documents that would previously have been referred 
to as NOFAs. This change is based on the terminology used in Office 
of Management and Budget Management in its Guidance for Grants and 
Agreements (85 FR 49506, August 13, 2020). However, following the 
terminology used in the public comments, this document uses the term 
``NOFA'' throughout.
---------------------------------------------------------------------------

    Commenters also stated that the definition of ``significant 
guidance'' is unclear, overly broad, and susceptible to variance. One 
commenter stated that terms used in the definition of ``significant 
guidance,'' such as ``serious inconsistency'' or ``interference'' with 
another agency, are so vague that ``if [the interim final rule is] 
interpreted broadly, nearly every piece of guidance not explicitly 
exempted from being considered significant guidance will be subject to 
the burdensome OIRA review and public comment process.'' The commenter 
also noted the lack of explanation for how economic impact analyses 
would be conducted for significant guidance, and the apparent lack of 
public access to such analyses.
    HUD Response: HUD agrees that the terms and definitions used by the 
interim final rule lack clarity and could lead to confusion and 
inconsistent implementation of HUD's programs. HUD appreciates the 
commenters' recommendations regarding legal opinions, but each legal 
opinion is party- and fact-specific, and HUD does not believe that they 
can be made generally applicable to other similarly situated parties. 
As for the NOFA process, PHAs and other entities are permitted to 
follow-up with HUD with questions regarding NOFAs and provide feedback 
for future NOFAs regardless of the language in part 11.
    Lastly, HUD agrees with public commenters that the definitions of 
``guidance'' and ``significant guidance'' could be interpreted broadly 
and doing so would make issuing guidance challenging. HUD notes that 
the definition of ``significant guidance'' incorporated in the interim 
final rule mirrors the definition in E.O. 12866 (Regulatory Planning 
and Review) for ``significant regulatory action'' and includes ``novel 
legal or policy issues'' which challenges articulating a specific 
definition. Notwithstanding, the requirement that HUD provide an 
economic analysis for guidance that rises to the level of ``significant 
regulatory action'' creates additional challenges to the Department's 
ability to timely issue guidance and outweighs any benefit resulting 
from the interim final rule.
    Comment: The interim final rule creates uncertainty.
    Commenters stated that the uncertainty created by the interim final 
rule would negatively affect HUD constituencies that routinely rely on 
HUD guidance, including tenants, advocates, owners, vulnerable 
populations, and PHAs. One commenter stated that HUD guidance is 
undermined by the provision noting that ``the authority is nonbinding 
and unenforceable.'' The commenter stated

[[Page 35394]]

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 ``create[s] 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 Sec.  11.8 apply; how these exceptions interact with 
Sec.  11.3(b); and the implications of the interim final rule on joint 
agency guidance. For the public participation requirement, the 
commenter referred to Sec.  11.6(b), 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 HUD's 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 HUD's 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 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 HUD's 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 Administration's 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 APA's notice-and-
comment procedures.
    Several commenters questioned HUD's 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.

[[Page 35395]]

13891 undercuts HUD's 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-and-comment procedure 
beginning with a proposed rule and should better involve stakeholders, 
such as PHAs.
    HUD Response: HUD's 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 rule's provision that provided the public a procedure to 
challenge the agency's 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 agency's 
determination on a challenged guidance document is a ``final agency 
action'' subject to APA review. The commenter recommended revising 
Sec.  11.6, by adding a paragraph that would provide, ``[a]ny 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 Sec.  11.6, including adding 
provisions for the public to request clarification of existing 
guidance, reinstatement of old 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 HUD's 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 HUD's 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 Biden's ``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 Review--Executive 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, 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 3(f) 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 50.19(c)(1), 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. 1531-1538) 
(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

[[Page 35396]]

procedure for the public to request withdrawal or modification of a 
guidance document. Removal of these procedures imposes no significant 
economic impact on a substantial number of small entities. Therefore, 
the undersigned certifies that this rule will not have a significant 
impact on a substantial number of small entities.

Executive Order 13132, Federalism

    E.O. 13132 (entitled ``Federalism'') prohibits an agency from 
publishing any rule that has federalism implications if the rule 
either: (1) Imposes substantial direct compliance costs on State and 
local governments and is not required by statute, or (2) preempts State 
law, unless the agency meets the consultation and funding requirements 
of Section 6 of the E.O. This Interim final rule does not have 
federalism implications and does not impose substantial direct 
compliance costs on State and local governments nor preempt state law 
within the meaning of the E.O.

List of Subjects in 24 CFR Part 11

    Administrative practice and procedure.

PART 11 [REMOVED]

0
Accordingly, for the reasons described in the preamble and under the 
authority of 42 U.S.C. 3535(d), the U.S. Department of Housing and 
Urban Development removes 24 CFR part 11.

    Dated: June 24, 2021.
Marcia L. Fudge,
Secretary.
[FR Doc. 2021-14019 Filed 7-2-21; 8:45 am]
BILLING CODE 4210-67-P