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 


jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 86, No. 134 / Friday, July 16, 2021 / Rules and Regulations 37677 

superseded by statute, regulation, and 

policy and, therefore, can be removed 

from the Code of Federal Regulations 

(CFR). 

DATES: This rule is effective on July 16, 

2021. 

FOR FURTHER INFORMATION CONTACT: 

Jason M. Beck, (703) 697–1735 (desk); 

571–309–0478 (mobile). 

SUPPLEMENTARY INFORMATION: This final 

rule removes the DoD regulations at 32 

CFR part 169, most recently updated on 

May 19, 1989 (54 FR 21726), and 32 

CFR part 169a, most recently updated 

on July 1, 1992 (57 FR 29207), because 

they are obsolete. This action is 

predicated on reissued guidance and 

policy from the Office of Management 

and Budget (OMB), cancellation of 

associated DoD policies, and the 

enactment of statute in title 10 of the 

United States Code (U.S.C.). 

The content of 32 CFR part 169 was 

based on the DoD policy document, DoD 

Instruction 4100.15, ‘‘Commercial 

Activities Program,’’ which was 

subsequently cancelled on July 10, 

2013, because it was obsolete. The 

content of 32 CFR part 169a was based 

on the DoD policy document, DoD 

Instruction 4100.33, ‘‘Commercial 

Activities Program Procedures,’’ which 

was also subsequently cancelled on 

March 4, 2011, because it was obsolete. 

DoD’s commercial activities program 

was based on a previous version of OMB 

Circular A–76, ‘‘Performance of 

Commercial Activities,’’ which was 

rescinded and replaced in May 2003 

(available at https://

www.whitehouse.gov/sites/ 

whitehouse.gov/files/omb/circulars/ 

A76/a76_incl_tech_correction.pdf). 

In addition to the cancellation of the 

associated DoD Instructions for parts 

169 and 169a that deem the rules 

obsolete, the subject matter aligned to 

these rules have substantially changed 

and been addressed in other areas. For 

example, 10 U.S.C. 2330a and 10 U.S.C. 

2461 were enacted in 2008 and 1996, 

respectively; the Federal Activities 

Inventory Reform (FAIR) Act was 

enacted in 1998; the definitions and 

policy in the Federal Acquisition 

Regulation (FAR) Parts 2, 7.3, and 7.5, 

as well as the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) 207.5 were changed to reflect 

the new rules in the FAIR Act and the 

2003 version of OMB Circular A–76; 

and the Office of Federal Procurement 

Policy (OFPP) issued Policy Letter 11– 

01, ‘‘Performance of Inherently 

Governmental and Critical Functions,’’ 

in 2011 (76 FR 56227). These laws, 

regulations, and Federal policies all 

substantially address the policy space 

covered by 32 CFR parts 169 and 169a. 

The FAIR Act, for example, establishes 

in law the framework of inherently 

governmental and commercial activities 

functions, while 10 U.S.C. 2461 

establishes the requirement for public/ 

private competitions before conversion 

to contractor performance— 

competitions which are covered under 

OMB Circular A–76. The FAR and 

DFARS regulations, as well as OFPP 

Policy Letter 11–01, go even farther than 

the FAIR Act and delineate additional 

categories of functions (such as closely 

associated with inherently 

governmental and critical) which are 

not mentioned in 32 CFR 169 and 169a. 

Similarly, 10 U.S.C. 2330a establishes 

law for the collection of contract 

services data, another area related to the 

commercial activities discussed in 32 

CFR 169 and 169a, but not covered by 

them. 

Additionally, the OMB Circular A–76 

public-private competition process has 

been under a Congressional moratorium 

since 2008. If the moratorium were 

lifted, the rules would still be 

considered obsolete and unnecessary, 

and promulgating new rules would be 

unnecessary due to the inclusion of 

language in title 10 U.S.C., the FAR, 

DFARS, and elsewhere in executive 

agency policy, as previously noted. 

These acts and policies address and 

cover the intent of parts 169 and 169a 

and, therefore, no longer make them 

applicable and worthy of staying active. 

Furthermore, not only are parts 169 and 

169a unnecessary, they are no longer 

current with the statutory, regulatory, 

and policy framework that governs the 

acquisition of services and functions in 

the Total Force Management policy 

space. 

It has been determined that 

publication of these CFR part removals 

for public comment is impracticable, 

unnecessary, and contrary to public 

interest since they are based on the 

removal of obsolete information. These 

removals are not significant under 

Executive Order (E.O.) 12866, 

‘‘Regulatory Planning and Review.’’ 

List of Subjects in 32 CFR Parts 169 and 

169a 

Armed forces, Government 

procurement. 

Accordingly, the Department of 

Defense amends 32 CFR chapter I as 

follows: 

PART 169—[REMOVED] 

■ 1. Under the authority of 5 U.S.C. 301, 

32 CFR part 169 is removed. 

PART 169a—[REMOVED] 

■ 2. Under the authority of 5 U.S.C. 301, 

32 CFR part 169a is removed. 

Dated: July 13, 2021. 

Kayyonne T. Marston, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2021–15163 Filed 7–15–21; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2021–0470] 

RIN 1625–AA00 

Safety Zone; Upper Mississippi River, 

Mile Marker 579.7 Approximately 1,000 

Feet Northwest of the Ulysses S. Grant 

Memorial Hwy., Dubuque, IA 

AGENCY: Coast Guard, Department of 

Homeland Security (DHS). 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone for 

all navigable waters of the Upper 

Mississippi River at mile marker 579.7 

extending 500 feet from the left 

decending bank approximately 1,000 

feet northwest of the Ulysses S. Grant 

Memorial Hwy. The safety zone is 

needed to protect personnel, vessels, 

and the marine environment from 

potential hazards created by a fireworks 

display. Entry of vessels or persons into 

this zone is prohibited unless 

specifically authorized by the Captain of 

the Port Sector Upper Mississippi River 

or a designated representative. 

DATES: This rule is effective on July 17, 

2021, from 9 p.m. through 10:30 p.m. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov, type USCG–2021– 

0470 in the search box and click 

‘‘Search.’’ Next, in the Document Type 

column, select ‘‘Supporting & Related 

Material.’’ 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Lieutenant Commander Stephanie 

Moore, Sector Upper Mississippi River 

Waterways Management Division, U.S. 

Coast Guard; telephone 314–269–2560, 

email Stephanie.R.Moore@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 


jbell on DSKJLSW7X2PROD with RULES