37674 Federal Register / Vol. 86, No. 134 / Friday, July 16, 2021 / Rules and Regulations 

3This is the colloquial name for Subtitle E of the 

Small Business Regulatory Enforcement Fairness 

Act of 1996. 

(Federalism), it is determined that this 

action does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

As noted above, this action is an 

order, not a rule. Accordingly, the 

Congressional Review Act (CRA) 3 is 

inapplicable, as it applies only to rules. 

5 U.S.C. 801, 804(3). It is in the public 

interest to maintain the temporary 

placement of N-ethylhexedrone, a-PHP, 

4-MEAP, MPHP, PV8, and 4-chloro-aPVP in schedule I because they pose a 

public health risk, for the reasons 

expressed in the temporary scheduling 

order (84 FR 34291, July 18, 2019). The 

temporary scheduling action was taken 

pursuant to 21 U.S.C. 811(h), which is 

specifically designed to enable DEA to 

act in an expeditious manner to avoid 

an imminent hazard to the public safety. 

Under 21 U.S.C. 811(h), temporary 

scheduling orders are not subject to 

notice and comment rulemaking 

procedures. DEA understands that the 

CSA frames temporary scheduling 

actions as orders rather than rules to 

ensure that the process moves swiftly, 

and this extension of the temporary 

scheduling order continues to serve that 

purpose. For the same reasons that 

underlie 21 U.S.C. 811(h), that is, the 

need to place these substances in 

schedule I because they pose an 

imminent hazard to public safety, it 

would be contrary to the public interest 

to delay implementation of this 

extension of the temporary scheduling 

order. Therefore, in accordance with 

section 808(2) of the CRA, this order 

extending the temporary scheduling 

order shall take effect immediately upon 

its publication. DEA will submit a copy 

of this extension of the temporary 

scheduling order to both Houses of 

Congress and to the Comptroller 

General, although such filing is not 

required under the CRA, 5 U.S.C. 801– 

808, because, as noted above, this action 

is an order, not a rule. 

Anne Milgram, 

Administrator. 

[FR Doc. 2021–15113 Filed 7–15–21; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 50 

[Docket No. OAG 174; AG Order No. 5077– 

2021] 

RIN 1105–AB61 

Processes and Procedures for 

Issuance and Use of Guidance 

Documents 

AGENCY: Office of the Attorney General, 

Department of Justice. 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: This interim final rule 

(‘‘rule’’) implements Executive Order 

13992, which, among other things, 

revoked Executive Order 13891 and 

directed the heads of all agencies to 

promptly take steps to rescind any 

orders, rules, regulations, guidelines, or 

policies, or portions thereof, 

implementing or enforcing the revoked 

Executive Order. By this rule, the 

Department of Justice (‘‘Department’’ or 

‘‘DOJ’’) revokes amendments to its 

regulations that were made during 2020 

pursuant to Executive Order 13891, 

which imposed limitations on the 

issuance and use of guidance 

documents. For further information on 

how the Department intends to address 

guidance documents going forward, 

interested parties should consult an 

Attorney General Memorandum the 

Department of Justice is issuing on its 

website in conjunction with this rule. 

DATES: 

Effective date: This rule is effective 

July 16, 2021. 

Applicability date: July 1, 2021. 

Comments: Comments are due on or 

before August 16, 2021. 

ADDRESSES: To ensure proper handling 

of comments, please reference Docket 

No. OAG 174 on all electronic and 

written correspondence. The 

Department encourages the electronic 

submission of all comments through 

https://www.regulations.gov using the 

electronic comment form provided on 

that site. For ease of reference, an 

electronic copy of this document is also 

available at that website. It is not 

necessary to submit paper comments 

that duplicate the electronic 

submission, as comments submitted to 

https://www.regulations.gov will be 

posted for public review and are part of 

the official docket record. However, 

should you wish to submit written 

comments through regular or express 

mail, they should be sent to Robert 

Hinchman, Senior Counsel, Office of 

Legal Policy, U.S. Department of Justice, 

Room 4252 RFK Building, 950 

Pennsylvania Avenue NW, Washington, 

DC 20530. Comments received by mail 

will be considered timely if they are 

postmarked on or before August 16, 

2021. The electronic Federal 

eRulemaking portal will accept 

comments until Midnight Eastern Time 

at the end of that day. 

FOR FURTHER INFORMATION CONTACT: 

Robert Hinchman, Senior Counsel, 

Office of Legal Policy, U.S. Department 

of Justice, telephone (202) 514–8059 

(not a toll-free number). 

SUPPLEMENTARY INFORMATION: 

I. Posting of Public Comments 

Please note that all comments 

received are considered part of the 

public record and made available for 

public inspection online at https://

www.regulations.gov. Information made 

available for public inspection includes 

personal identifying information (such 

as your name, address, etc.) voluntarily 

submitted by the commenter. 

You are not required to submit 

personal identifying information in 

order to comment on this rule. 

Nevertheless, if you want to submit 

personal identifying information (such 

as your name, address, etc.) as part of 

your comment, but do not want it to be 

posted online, you must include the 

phrase ‘‘PERSONAL IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment. You must also locate 

all the personal identifying information 

that you do not want posted online in 

the first paragraph of your comment and 

identify what information you want the 

agency to redact. Personal identifying 

information identified and located as set 

forth above will be placed in the 

agency’s public docket file, but not 

posted online. 

If you want to submit confidential 

business information as part of your 

comment but do not want it to be posted 

online, you must include the phrase 

‘‘CONFIDENTIAL BUSINESS 

INFORMATION’’ in the first paragraph 

of your comment. You must also 

prominently identify the confidential 

business information to be redacted 

within the comment. If a comment has 

so much confidential business 

information that it cannot be effectively 

redacted, the agency may choose not to 

post that comment (or to post that 

comment only partially) on https://

www.regulations.gov. Confidential 

business information identified and 

located as set forth above will not be 

placed in the public docket file, nor will 

it be posted online. 

If you want to inspect the agency’s 

public docket file in person by 

appointment, please see the FOR


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Federal Register / Vol. 86, No. 134 / Friday, July 16, 2021 / Rules and Regulations 37675 

FURTHER INFORMATION CONTACT

paragraph. 

II. Discussion 

A. Overview 

This rule implements Executive Order 

13992, ‘‘Revocation of Certain Executive 

Orders Concerning Federal Regulation’’ 

(86 FR 7049), by revoking the 

Department’s regulations at 28 CFR 

50.26 and 50.27. Going forward, the 

Department’s approach to those matters 

will be governed by a new Attorney 

General Memorandum being issued 

concurrently with this rule. 

B. Background—Existing Regulations 

and Memoranda 

In 2020, the Department of Justice 

published two interim final rules 

(‘‘IFRs,’’ ‘‘rules,’’ or ‘‘regulations’’) that 

regulate the issuance and use of 

guidance documents by the Department 

and its components. The first rule, 

which was entitled ‘‘Prohibition on the 

Issuance of Improper Guidance 

Documents Within the Justice 

Department’’ and added a new 28 CFR 

50.26, was published August 19, 2020 

(85 FR 50951). That rule emphasized 

that guidance documents generally may 

not be used ‘‘create rights or obligations 

binding on persons or entities outside 

the Executive Branch.’’ 28 CFR 

50.26(a)(4). It also instituted compliance 

procedures requiring Department 

components to include disclaimers and 

other specific language in all guidance 

documents. Id. 50.26(b). 

The first rule was followed by a 

second, entitled ‘‘Processes and 

Procedures for Issuance and Use of 

Guidance Documents’’ and published 

on October 7, 2020 (85 FR 63200), 

which expanded on aspects of the first 

rule by adding a new 28 CFR 50.27. 

Briefly, this second rule set forth 

processes and procedures governing the 

review, clearance, and issuance of 

guidance documents, and included 

limitations on the use of guidance 

documents in criminal and civil 

enforcement actions brought by the 

Department. 

Those two regulations published in 

2020 were developed from, and 

promulgated pursuant to, three 

documents. The first was a November 

16, 2017, memorandum issued by 

Attorney General Sessions, entitled 

‘‘Prohibition on Improper Guidance 

Documents’’ (‘‘the November 2017 

Memorandum’’). The November 2017 

Memorandum acknowledged the 

importance of guidance documents but 

also stated that ‘‘guidance may not be 

used as a substitute for rulemaking and 

may not be used to impose new 

requirements on entities outside the 

Executive Branch.’’ These principles 

were subsequently memorialized in the 

Justice Manual at section 1–19.000, 

https://www.justice.gov/jm/justicemanual. 

The second underlying document was 

a memorandum issued by Associate 

Attorney General Brand on January 25, 

2018, entitled ‘‘Limiting Use of Agency 

Guidance Documents in Affirmative 

Civil Enforcement Cases’’ (‘‘the January 

2018 Memorandum’’). The January 2018 

Memorandum reiterated many aspects 

of the November 2017 Memorandum, 

and stated more explicitly that the 

Department could not ‘‘convert’’ 

guidance documents into binding rules 

through litigation, and that failure to 

comply with a guidance document 

should not be used as presumptive or 

conclusive evidence that a party 

violated a related statute or regulation. 

That 2018 policy statement was then 

codified in the Justice Manual at section 

1–20.000. 

The third relevant document was 

President Trump’s Executive Order 

13891, ‘‘Promoting the Rule of Law 

Through Improved Agency Guidance 

Documents,’’ which was issued on 

October 9, 2019, and published in the 

Federal Register the next week. See 84 

FR 55235 (Oct. 15, 2019). That 

Executive Order embodied some of the 

same concepts as the November 2017 

Memorandum and January 2018 

Memorandum, with some differences. In 

particular, Executive Order 13891 

required, among other things, that each 

agency, as appropriate, build a single, 

searchable, online database to which the 

agency would publicly post all guidance 

documents. Executive Order 13891 also 

required that agencies promulgate or 

amend regulations to establish 

procedures for issuing guidance 

documents, including requiring nonbinding disclaimer language and the 

publication of ‘‘significant’’ guidance 

documents for notice and comment. 

Executive Order 13891 also directed 

agencies to incorporate a series of 

detailed and prescriptive requirements 

into their regulations for the 

development, review, issuance, and use 

of guidance documents. 

The two regulations that are the 

subject of this rulemaking were issued 

pursuant to the requirements of 

Executive Order 13891, though some of 

their provisions were based on the 

somewhat similar language of the 

November 2017 Memorandum and 

January 2018 Memorandum. 

C. Executive Order 13992 

On January 20, 2021, President Biden 

issued Executive Order 13992, which, 

among other things, revoked Executive 

Order 13891 and stated that ‘‘agencies 

must be equipped with the flexibility to 

use robust regulatory action to address 

national priorities.’’ 86 FR 7049 (Jan. 25, 

2021). Executive Order 13992 directed 

the heads of all agencies to ‘‘promptly 

take steps to rescind any orders, rules, 

regulations, guidelines, or policies, or 

portions thereof, implementing or 

enforcing’’ the revoked Executive Order. 

D. Revocation of 28 CFR 50.26 and 28 

CFR 50.27 

Based on its evaluation of the 

regulations at 28 CFR 50.26 and 28 CFR 

50.27, the Department has concluded 

that those regulations are unnecessary 

and unduly burdensome, lack flexibility 

and nuance, and limit the ability of the 

Department to do its work effectively. 

Among other things, the regulations 

have generated collateral disputes in 

affirmative and enforcement litigation, 

and they have discouraged Department 

components from preparing and issuing 

guidance that would be helpful to 

members of the public. In addition, 

because the regulations imposed 

requirements on a particular category of 

agency documents deemed to be 

‘‘guidance,’’ the regulations caused 

Department staff to expend significant 

resources determining whether each 

agency document, product or 

communication constituted ‘‘guidance’’ 

and was therefore subject to these 

regulations. The Department has 

determined that the rules should be 

revoked. 

In revoking the rules, the Department 

is not departing from the principle that 

guidance documents cannot impose 

legal requirements beyond those found 

in relevant constitutional provisions, 

statutes, and legislative regulations. The 

Department also continues to believe 

that guidance documents should be 

clear, transparent, and readily accessible 

to the public. But these principles, and 

other related Department policies and 

practices concerning guidance 

documents, have traditionally been 

addressed through memoranda from 

Department leadership rather than 

through regulations. The Department is 

therefore revoking 28 CFR 50.26 and 28 

CFR 50.27 in their entirety, and the 

Attorney General is concurrently issuing 

a new Memorandum setting forth the 

Department’s policies going forward. 

E. Public Comments on the Two IFRs 

Pertaining to 28 CFR 50.26 and 50.27 

The two IFRs issued in 2020 to 

promulgate 28 CFR 50.26 and 50.27 

were made effective upon issuance, and 

by their nature they did not require a 

pre-promulgation notice-and-comment 


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37676 Federal Register / Vol. 86, No. 134 / Friday, July 16, 2021 / Rules and Regulations 

period under the Administrative 

Procedure Act. However, the 

Department chose to provide a 30-day 

period for post-promulgation public 

comment for each rule. 

The Department received fewer than 

ten substantive comments on the two 

rules. The comments discussed the need 

to ensure that regulated parties have 

notice of legal obligations, and for 

enforcement actions to be predicated on 

statutes and regulations. Other 

comments noted the importance of 

issuing agency guidance to the public, 

as agencies use interpretative guidance 

to explain legal requirements and put 

them in context. The Department has 

considered these comments in 

connection with the decision to revoke 

the rules. 

III. Conclusion 

After having considered Executive 

Order 13992, the views of the 

Department’s components and their 

experience with the two rules, and the 

public comments on the two IFRs 

published in 2020, the Department has 

concluded that the best approach at this 

point is to revoke the two regulations, 

28 CFR 50.26 and 50.27, in their 

entirety, effective immediately. 

Revocation frees Department personnel, 

including those in its litigating 

components and those in components 

that issue guidance documents, from the 

overly prescriptive nature of these two 

regulations. Accordingly, this rule 

removes the regulations at 28 CFR 50.26 

and 50.27. 

The current provisions of the Justice 

Manual at sections 1–19.000 and 

1–20.000 (https://www.justice.gov/jm/ 

justice-manual) will be revised as 

appropriate at a later date. The new 

Attorney General Memorandum, issued 

concurrently with this rule, sets forth 

the Department’s policies in this area 

going forward. 

III. Regulatory Certifications 

A. Administrative Procedure Act 

This rule relates to a matter of agency 

management or personnel and is a rule 

of agency organization, procedure, or 

practice. As such, this rule is exempt 

from the usual requirements of prior 

notice and comment and a 30-day delay 

in effective date. See 5 U.S.C. 553(a)(2), 

(b)(A), (d). The rule is effective upon 

signature. The Department, however, is, 

in its discretion, seeking postpromulgation public comment on this 

rulemaking. 

B. Regulatory Flexibility Act 

A Regulatory Flexibility Analysis was 

not required for this final rule because 

the Department was not required to 

publish a general notice of proposed 

rulemaking for this matter. See 5 U.S.C. 

601(2), 604(a). 

C. Executive Orders 12866 and 13563— 

Regulatory Review 

This rule has been drafted and 

reviewed in accordance with Executive 

Order 12866, ‘‘Regulatory Planning and 

Review,’’ section 1(b), The Principles of 

Regulation, and Executive Order 13563, 

‘‘Improving Regulation and Regulatory 

Review,’’ section 1(b), General 

Principles of Regulation. 

This final rule is ‘‘limited to agency 

organization, management, or personnel 

matters’’ and thus is not a ‘‘rule’’ for 

purposes of review by the Office of 

Management and Budget (OMB), a 

determination in which OMB has 

concurred. See Executive Order 12866, 

sec. 3(d)(3). Accordingly, this rule has 

not been reviewed by OMB. The 

Department had claimed a similar 

exemption at the time of promulgating 

the two regulations (28 CFR 50.26 and 

50.27) that are being revoked by this 

rule. See 85 FR 50951, 50952; 85 FR 

63200, 63201. 

D. Executive Order 12988—Civil Justice 

Reform 

This regulation meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988, ‘‘Civil 

Justice Reform.’’ 

E. Executive Order 13132—Federalism 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

‘‘Federalism,’’ the Department has 

determined that this rule does not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

summary impact statement. 

F. Unfunded Mandates Reform Act of 

1995 

This rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted for inflation) in any one year, 

and it will not significantly or uniquely 

affect small governments. Therefore, no 

actions are necessary under the 

provisions of the Unfunded Mandates 

Reform Act of 1995, 2 U.S.C. 1501 et 

seq. 

G. Congressional Review Act 

This rule is not a major rule as 

defined by section 804 of the 

Congressional Review Act (CRA), 5 

U.S.C. 804. This action pertains to 

agency management or personnel, and 

agency organization, procedure, or 

practice, and does not substantially 

affect the rights or obligations of nonagency parties. Accordingly, it is not a 

‘‘rule’’ as that term is used in the CRA, 

5 U.S.C. 804(3)(B), (C), and the reporting 

requirement of 5 U.S.C. 801 does not 

apply. 

H. Paperwork Reduction Act of 1995 

This final rule does not impose any 

new reporting or recordkeeping 

requirements under the Paperwork 

Reduction Act of 1995, 44 U.S.C. 3501– 

3521. 

List of Subjects in 28 CFR Part 50 

Administrative practice and 

procedure. 

Accordingly, for the reasons set forth 

in the preamble, part 50 of chapter I of 

title 28 of the Code of Federal 

Regulations is amended as follows: 

PART 50—STATEMENTS OF POLICY 

■ 1. The authority citation for part 50 

continues to read as follows: 

Authority: 5 U.S.C. 301; 18 U.S.C. 1162; 28 

U.S.C. 509, 510, 516, and 519; 42 U.S.C. 1921 

et seq., 1973c; and Pub. L. 107–273, 116 Stat. 

1758, 1824. 

§§ 50.26 through 50.27 [Removed and 

reserved] 

■ 2. Sections 50.26 and 50.27 are 

removed and reserved. 

Dated: July 1, 2021. 

Merrick B. Garland, 

Attorney General. 

[FR Doc. 2021–14480 Filed 7–15–21; 8:45 am] 

BILLING CODE 4410–BB–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Parts 169 and 169a 

[Docket ID: DOD–2019–OS–0113] 

RIN 0790–AK91 

Commercial Activities Program 

AGENCY: Office of the Secretary, 

Department of Defense (DoD). 

ACTION: Final rule. 

SUMMARY: This final rule removes DoD’s 

regulations concerning the Commercial 

Activities Program. The regulations are 

obsolete since they have been 


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