[Federal Register Volume 78, Number 106 (Monday, June 3, 2013)]
[Notices]
[Pages 33045-33047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13068]


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 Notices
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 This section of the FEDERAL REGISTER contains documents other than rules 
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  Federal Register / Vol. 78, No. 106 / Monday, June 3, 2013 / 
Notices  

[[Page 33045]]



DEPARTMENT OF AGRICULTURE

Office of the Secretary

[0503-AA51]


Revocation of Statement of Policy on Public Participation in Rule 
Making

AGENCY: Office of the Secretary, USDA.

ACTION: Proposed revocation of Statement of Policy; request for 
comments.

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SUMMARY: The U.S. Department of Agriculture (USDA) is proposing to 
rescind the Statement of Policy titled ``Public Participation in Rule 
Making,'' published in the Federal Register on July 24, 1971 (36 FR 
13804) that requires agencies in USDA to follow the Administrative 
Procedure Act's (APA) notice-and-comment rulemaking procedures even in 
situations where the APA does not require it. The Statement of Policy 
implemented a 1969 recommendation by the Administrative Conference of 
the United States (ACUS), which urged Congress to amend the APA to 
remove the exemption from the notice-and-comment requirement for 
rulemakings relating to ``public property, loans, grants, benefits, or 
contracts,'' adding that agencies should follow the notice-and-comment 
procedures pending amendment of the APA.
    In proposing to rescind the Statement of Policy, USDA notes that in 
the more than 40 years since ACUS made its recommendation, Congress has 
not amended the APA to implement it. Moreover, USDA has determined in 
this time that the advantages of implementing the ACUS recommendation 
do not outweigh the disadvantages, such as increased costs and delayed 
implementation imposed on USDA programs. The proposed change would not 
result in USDA forgoing notice-and-comment rulemaking for all 
regulatory actions relating to public property, loans, grants, 
benefits, or contracts, rather the proposed change would grant USDA 
agencies the discretion to determine the appropriateness of notice-and-
comment rulemaking for this class of rulemakings.

DATES: Comments must be received no later than July 3, 2013.

ADDRESSES: You may submit comments, identified by the RIN, by any of 
the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Email: [email protected]. Include the RIN in the subject 
line of the message.
    Fax: 202-720-5837.
    Mail: Paper, disk or CD-ROM submissions should be submitted to Adam 
J. Hermann, Esq., General Law and Research Division, Office of the 
General Counsel, USDA, STOP 1415, 1400 Independence Avenue SW., 
Washington, DC 20250.
    Hand Delivery/Courier: Adam J. Hermann, Esq., General Law and 
Research Division, Office of the General Counsel, USDA, South Building 
Room 3311, 1400 Independence Ave. SW., Washington, DC 20250.
    Instructions: All submissions received must include the agency name 
and the RIN. All comments received will be posted without change to 
http://www.regulations.gov, including any personal information 
provided.

FOR FURTHER INFORMATION CONTACT: Adam J. Hermann, General Law and 
Research Division, Office of the General Counsel, 3311-S, USDA, 1400 
Independence Ave. SW., Washington, DC 20250; Voice: (202) 720-9425; 
Email: [email protected].

SUPPLEMENTARY INFORMATION: 
    1. The APA provides generally that, before a rule may be 
promulgated by a Federal agency, notice of proposed rulemaking must be 
published in the Federal Register, and interested persons must be given 
an opportunity to participate in the rulemaking through submission of 
written data, views, or arguments. See 5 U.S.C. 553(b), (c). However, 
the APA specifically exempts from these public participation 
requirements ``a matter relating to agency management or personnel or 
to public property, loans, grants, benefits, or contracts.'' 5 U.S.C. 
553(a)(2).
    In 1969, ACUS adopted Recommendation No. 69-8, which recommended 
that Congress amend the APA to remove the exemption for rulemakings 
relating to ``public property, loans, grants, benefits, or contracts,'' 
and that agencies follow the APA's notice-and-comment procedures for 
such rulemakings pending amendment of the APA.
    On July 24, 1971, Secretary of Agriculture Clifford M. Hardin 
published in the Federal Register a Statement of Policy (``Public 
Participation in Rule Making'') implementing the ACUS recommendation. 
The document outlined the policy of USDA ``to give notice of proposed 
rule making and to invite the public to participate in rule making 
where not required by law.'' Specifically, the Statement of Policy 
required that all agencies of USDA follow the public participation 
requirements of 5 U.S.C. 553(b) and (c) in rulemaking relating to 
public property, loans, grants, benefits, or contracts, and it further 
provided that any ``good cause'' finding under 5 U.S.C. 553(b)(B) will 
be used ``sparingly'' and ``only where there is a substantial basis 
therefor.'' See 36 FR 13804.
    The 1971 Statement of Policy was issued in anticipation of 
legislative action that would have amended the APA to remove the 
exemption for such matters, but in the more than 40 years that have 
passed since the ACUS recommendation was adopted, Congress has not 
acted to implement the recommendation. USDA ascribes significant weight 
to this fact.
    2. When USDA issued the Statement of Policy implementing the 1969 
ACUS recommendation, USDA anticipated that ``[t]he advantages of 
implementing the [ACUS] recommendation . . . will outweigh any 
disadvantages such as increased costs or delays.'' USDA has since 
determined that this is not the case, finding that, in many cases, 
using the APA's notice-and-comment procedures necessarily delays the 
implementation of a program without providing a corresponding benefit. 
For example, Executive Order 12866, section 6(a), generally requires 
that agencies use a comment period ``of not less than 60 days.'' When 
this two-month period is added to the amount of agency staff time 
needed to prepare a notice of proposed rulemaking and obtain the 
necessary Office of Management and Budget reviews and

[[Page 33046]]

clearances pursuant to Executive Order 12866, plus the additional time 
it takes the agency to review and respond to any comments received, 
much time has been spent making a proposal to implement a program, 
rather than implementing it.
    Without the 1971 Statement of Policy, an agency may choose to 
solicit public comment on a proposed rule even where not required to do 
so by the APA in order to give the public an opportunity to weigh in on 
matters of great public interest, such as, for example, establishing 
eligibility requirements for a particular loan program. In this 
situation, USDA would continue to use notice-and-comment rulemaking to 
promulgate regulations implementing the program, notwithstanding the 
APA exemption.
    In other cases, an agency may conclude that the public benefit of 
issuing awards as soon as practicable outweighs any advantage of 
affording the public a pre-implementation opportunity to comment on 
program rules. For example, the nature of the program itself, such as 
certain USDA loan mechanics, may undercut the need for proposed 
rulemaking because the general terms of most Federal loan programs are 
already established through government-wide issuances such as Office of 
Management and Budget (OMB) Circular No. A-129, Policies for Federal 
Credit Programs and Non-Tax Receivables. In such cases, the public 
should not be deprived of timely Federal assistance due to an 
administratively-imposed regulatory procedure that the APA itself does 
not require.
    Indeed, USDA has found that in many situations, the issuance of 
proposed rules (or interim rules with requests for public comment) has 
generated little public interest in the way of formal comments, thus 
prolonging program implementation without a corresponding benefit. For 
example:
    (a) The Voluntary Public Access and Habitat Incentive Program, as 
added by section 2606 of the Food, Conservation, and Energy Act of 2008 
(``2008 Farm Bill''), provides grants to State and tribal governments 
to encourage owners and operators of privately-held farm, ranch, and 
forest land to voluntarily make that land available for access by the 
public for wildlife-dependent recreation, including hunting, fishing, 
and other compatible recreation and to improve fish and wildlife 
habitat on their land. USDA received 14 comments on the interim final 
rule, published July 8, 2010 (75 FR 39135). The majority of public 
comments supported the program, and while the public welcomed the 
opportunity to comment, they specifically mentioned that they did not 
want the rulemaking process to delay making the grants. While a small 
number of public comments opposed the use of Federal funds for this 
purpose, or otherwise opposed the scope of the program as specified in 
the 2008 Farm Bill, they did not provide constructive alternatives to 
the implementation of the program outlined in the rule. Moreover, the 
supportive comments that requested clarification on particular terms 
could have been addressed as part of the Request for Proposals (RFP) 
process, rather than through the notice-and-comment rulemaking process.
    (b) On January 22, 2010, RUS published a proposed rule in the 
Federal Register (75 FR 3642) to establish the Special Evaluation 
Assistance for Rural Communities and Households (SEARCH) Program, as 
added by section 6002 of the 2008 Farm Bill. The SEARCH grant program 
authorizes the Secretary to make predevelopment planning grants for 
feasibility studies, design assistance, and technical assistance to 
financially distressed communities in rural areas with populations of 
2,500 or fewer inhabitants for water and waste disposal projects. No 
comments were received on the regulation text; however, one public 
comment was received with regard to the information collection and 
recordkeeping requirements contained in the rule. This comment, which 
did not result in changes to program, would have been addressed as part 
of the Paperwork Reduction Act process, rather than through the notice-
and-comment rulemaking process.
    (c) The Natural Resources Conservation Service (NRCS), on behalf of 
the Commodity Credit Corporation (CCC), published an interim final rule 
with request for comment on November 20, 2008 (73 FR 70245) that set 
forth the policies and procedures implementing the Agricultural 
Management Assistance Program (AMA). Through AMA, NRCS provides 
technical and financial assistance to participants in eligible States 
to address issues such as water management, water quality, and erosion 
control by incorporating conservation practices into their agricultural 
operations. NRCS received four letters containing approximately one 
dozen comments, which the agency addressed in a final rule published 
December 8, 2009. The majority of the changes in the final rule were 
administrative, technical, or corrections to the interim rule, rather 
than substantive changes made in response to public input.
    Except where otherwise required by law,\1\ USDA agencies should 
have the discretion to determine the appropriateness of affording the 
public an opportunity for notice and comment when promulgating 
regulations relating to public property, loans, grants, benefits, or 
contracts involving their programs. The Department's proposal to 
rescind the 1971 Statement of Policy will not impact what constitutes a 
``rule'' under the APA (see 5 U.S.C. 551(4)), nor will it affect the 
types of information that are required to be published in the Federal 
Register (see 5 U.S.C. 552(a)(1)). USDA remains committed to involving 
the public in the rulemaking process through the issuance of proposed 
rules where necessary or appropriate.
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    \1\ Revocation of the Statement of Policy will not affect other 
statutory public participation requirements. For example, section 
4(c) of the Food and Nutrition Act of 2008 requires notice-and-
comment rulemaking in accordance with the APA for the Supplemental 
Nutrition Assistance Program. See 7 U.S.C. 2013(c). Additionally, 
section 22 of the Office of Federal Procurement Policy Act, Public 
Law 93-400, has specific notice-and-comment procedures for the 
issuance of agency procurement policies, regulations, procedures, 
and forms. See 41 U.S.C. 1707. Also, section 103(c)(2) of the 
Agricultural Research, Extension, and Education Reform Act of 1998, 
Public Law 105-185, requires the Secretary, when formulating a 
request for proposals for competitively-awarded agricultural 
research, extension, or education activity funding, to consider 
input solicited from stakeholders regarding the prior year's request 
for proposals. See 7 U.S.C. 7612(c)(2).
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    3. The Department's proposal to rescind the 1971 Statement of 
Policy acknowledges the reality that the public participates in much of 
the formulation of agency policies on financial and transactional 
programs through means other than by following the daily publication of 
the Federal Register. The 1969 ACUS recommendation on which the 1971 
Statement of Policy was based was adopted at a time when information 
published in the Federal Register was not widely available elsewhere. 
Today, information on the implementation of agency programs is widely 
distributed in a number of ways, including via agency Web sites and 
specialized Web sites such as Grants.gov (http://www.grants.gov) and 
Benefits.gov (http://www.benefits.gov), and the public routinely 
engages the agencies through multiple online channels, including the 
Open Government Initiative.
    USDA remains committed to transparency and to providing timely 
information to the public. For example, with respect to discretionary 
awards of Federal assistance, USDA will continue to follow the Office 
of Federal Financial Management (OFFM) Policy Directive on Financial 
Assistance Program

[[Page 33047]]

Announcements (68 FR 37370), which requires Federal agencies to post on 
the internet, in a standard format, all announcements of funding 
opportunities under which domestic entities are eligible recipients, as 
well as the OFFM Policy Directive on use of Grants.gov FIND (68 FR 
58146), which requires Federal agencies to electronically post synopses 
of announcements of funding opportunities under financial assistance 
programs that award discretionary grants and cooperative agreements, 
using a standard set of data elements. As discussed above, the Office 
of Federal Procurement Policy Act separately provides notice-and-
comment procedures for agency issuances of procurement policies, 
regulations, procedures, and forms. General public property regulations 
are found in the Federal Management Regulation, 41 CFR part 102, and 
USDA will continue to publish on its Web site the supplemental 
Agriculture Property Management Regulations (AGPMR) and Departmental 
directives on property management.
    USDA's commitment to transparency and open government is an 
important part of the Obama Administration's Open Government 
Initiative, as reflected in the Presidential Memorandum on 
``Transparency and Open Government'' (Jan. 21, 2009) and OMB Memorandum 
M-10-06, ``Open Government Directive'' (Dec. 8, 2009). For more 
information on USDA's efforts as part of the Open Government 
Initiative, please visit http://www.usda.gov/open.
    This proposed action has been reviewed under Executive Order No. 
12866 and has been determined not to be a ``significant regulatory 
action.'' This action will not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
nor will it materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs; nor will it have an annual effect 
on the economy of $100 million or more; nor will it adversely affect 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local or Tribal 
governments or communities in a material way. Furthermore, it does not 
raise a novel legal or policy issue arising out of legal mandates, the 
President's priorities or principles set forth in the Executive Order.
    USDA certifies that this action will not have a significant 
economic impact on a substantial number of small entities as defined in 
the Regulatory Flexibility Act, Pub. L. 96-534, as amended (5 U.S.C. 
601 et seq.).
    This proposed action contains no information collections or 
recordkeeping requirements under the Paperwork Reduction Act, as 
amended, (44 U.S.C. 3501 et seq.).

Thomas J. Vilsack,
Secretary of Agriculture.
[FR Doc. 2013-13068 Filed 5-31-13; 8:45 am]
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