Federal Register / Vol. 86, No. 126 / Tuesday, July 6, 2021 / Rules and Regulations 35391 

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 

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.’’; 

■ 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: 

Supplement No. 4 to Part 744—Entity 

List 

* * * * * 

Country Entity License 

requirement License review policy Federal Register citation 

*******

BURMA ............ * * * * * * 

King Royal Technologies Co., Ltd., 

a.k.a., the following one alias: 

—KRT. 

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]. 

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. 

For all items subject to 

the EAR. (See § 744.11 

of the EAR). 

Presumption of denial ...... 86 FR 13180, 3/8/2021. 

86 FR [INSERT FR 

PAGE NUMBER AND 

July 6, 2021]. 

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. 

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]. 

Myanmar Yang Tse Copper, Ltd., 70/I, 

Bo Chein St., Ward (11), Hlaing, 

Yangon, Burma. 

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]. 

Wanbao Mining, Ltd., 70 Bo Chain Ln, 

Yangon, Burma. 

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]. 

* * * * * * * 

* * * * * 

Matthew S. Borman, 

Deputy Assistant Secretary for Export 

Administration. 

[FR Doc. 2021–14367 Filed 7–2–21; 8:45 am] 

BILLING CODE 3510–33–P 

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. 


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35392 Federal Register / Vol. 86, No. 126 / Tuesday, July 6, 2021 / Rules and Regulations 

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 


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1HUD 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. 

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. 

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 


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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 

§ 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. 


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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 

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 


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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 

AGENCY: Departmental Offices, 

Department of the Treasury. 

ACTION: Final rule. 

SUMMARY: 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) 

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: 

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 


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