[Federal Register Volume 78, Number 208 (Monday, October 28, 2013)]
[Notices]
[Pages 64194-64196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-25321]
========================================================================
Notices
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
appearing in this section.
========================================================================
Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 /
Notices
[[Page 64194]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary
[0503-AA51]
Revocation of Statement of Policy on Public Participation in
Rulemaking
AGENCY: Office of the Secretary, USDA.
ACTION: Revocation of Statement of Policy.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Agriculture (USDA) is revoking the
Statement of Policy titled ``Public Participation in Rulemaking,''
published in the Federal Register on July 24, 1971 (36 FR 13804), which
required agencies in USDA to follow the Administrative Procedure Act's
(APA) notice-and-comment rulemaking procedures 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. By revoking the 1971 Statement of Policy, USDA
restores the discretion to use notice-and-comment procedures when
appropriate, unless otherwise required by law, with regard to this
class of rulemakings. This action also improves USDA's ability to
implement programs efficiently.
DATES: Effective date: October 28, 2013.
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: On June 3, 2013, USDA published for comment
a notice (78 FR 33045) proposing to rescind a 1971 Statement of Policy,
published in the Federal Register on July 24, 1971 (36 FR 13804), which
required all USDA agencies to follow the public participation
requirements of the APA (5 U.S.C. 553(b) and (c)) in rulemaking
relating to public property, loans, grants, benefits, or contracts,
even though the APA specifically exempts that class of rulemakings from
such public participation requirements. The Statement of Policy further
provided that any ``good cause'' finding under 5 U.S.C. 553(b)(B) of
the APA would be used ``sparingly'' and ``only where there is a
substantial basis therefor.'' The comment period closed on July 3,
2013. In response to the proposal, USDA received comments from two
entities.
The first commenter, a member of the public, objected to a
statement in the ``Summary'' section of the notice, which stated that
revocation of the Statement of Policy ``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.'' The commenter asserted that ``appropriate'' is
a subjective term and suggested that what an agency might view as an
inappropriate situation for using notice-and-comment procedures might
be viewed by the public as an appropriate situation. For the reasons
discussed below, USDA is not making any changes in response to this
comment.
USDA notes that this action merely restores to USDA agencies the
discretion already afforded by the APA. The APA does not require the
use of notice-and-comment procedures for rulemakings relating to public
property, loans, grants, benefits, or contracts. If another statute
requires the use of such procedures (for example, section 22 of the
Office of Federal Procurement Policy Act, 41 U.S.C. 1707, which has
specific notice-and-comment requirements for the issuance of agency
procurement policies, regulations, procedures, and forms), USDA would
use those procedures. Similarly, if a USDA agency determines that the
benefit of affording the public a pre-implementation opportunity to
comment on program rules is not outweighed by other considerations (for
example, by the public benefit of awarding Federal assistance as soon
as practicable), then the agency may use the discretion afforded by the
APA to use notice-and-comment procedures even though not required by
the APA.
The second commenter, the Humane Society of the United States
(HSUS), urged USDA to continue to follow the APA's notice-and-comment
procedures for regulatory actions relating to public property, loans,
grants, benefits, or contracts, as required by the 1971 Statement of
Policy. HSUS organized its comments into two broad categories: (1) Harm
to the public; and (2) problems with the claimed bases for the proposed
action. For the reasons discussed below, USDA is not making any changes
in response to these comments.
With respect to the first category of comments, HSUS asserted that
revocation of the 1971 Statement of Policy would lead to less informed
rules that need not be responsive to public input, make it more
difficult for the public to challenge rules under the APA, and
substantially reduce accountability and transparency, citing to several
Federal court decisions discussing the importance of notice-and-comment
procedures. The commenter further noted that ``[t]his cuts to the heart
of the APA's purpose and would deprive the public and courts of
important information needed to ensure a properly functioning
government.''
Because this action merely restores to USDA agencies the discretion
already afforded by the APA, USDA does not agree with the commenter's
arguments that revoking the Statement of Policy is somehow contrary to
the purpose of the APA. By this action, USDA is merely implementing a
policy of no longer requiring agencies to follow procedures that the
APA itself does not require. USDA also reiterates its commitment to
transparency and open government, as explained in the June 3, 2013
notice (78 FR 33045, 33046-33047).
HSUS also asserted that applying this new policy to activities of
the Wildlife Services (WS) division of USDA's Animal and Plant Health
Inspection Service (APHIS) is inappropriate in light of recent public
and congressional scrutiny of APHIS/WS activities, as it would further
reduce transparency and
[[Page 64195]]
accountability. The commenter made a similar assertion with respect to
the meat purchasing activities of USDA's Agricultural Marketing Service
(AMS).
In revoking the 1971 Statement of Policy, USDA is not identifying
specific regulatory activities for which an agency will choose to forgo
notice-and-comment rulemaking in the future. At the same time, USDA is
not singling out certain agencies or activities to which the new policy
will or will not apply. Consistent with the APA, all USDA agencies,
including APHIS and AMS, will have the discretion to determine the
appropriateness of using the APA notice-and-comment procedures for
rulemakings relating to public property, loans, grants, benefits, or
contracts, except where specifically required by law.
With respect to the second category of comments, HSUS questioned
one of the bases identified in the June 3, 2013, notice for proposing
to revoke the 1971 Statement of Policy. Specifically, USDA noted that
the Statement of Policy had implemented a 1969 ACUS recommendation 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. USDA further noted that
``[t]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.'' See 78 FR 33045. The commenter objected to the fact
that the notice did not explain why revoking the Statement of Policy is
appropriate now versus earlier, considering that ACUS has not changed
its position.
The fact that USDA is revoking the Statement of Policy now is based
on a number of considerations as detailed in the June 3 notice,
including, but not limited to, congressional inaction on the ACUS
recommendation. By not implementing the ACUS recommendation, despite
having ample time to do so, Congress has effectively chosen to leave
the APA exemption in place.
HSUS also objected to the fact that the June 3, 2013, notice did
not address all rulemakings since the Statement of Policy was issued in
1971 in order to determine the value of notice-and-comment rulemaking,
but rather included a ``cherry-picked handful of examples.'' According
to the commenter, ``that the costs of following notice-and-comment
procedures may outweigh the benefits in some instances does not support
a full revocation of the Statement of Policy'' (emphasis in original).
The commenter also noted the availability of the APA's so-called ``good
cause'' exemption in 5 U.S.C. 553(b)(B), which permits agencies to
forgo notice-and-comment procedures ``when the agency for good cause
finds (and incorporates the finding and a brief statement of reasons
therefor in the rules issued) that notice and public procedure thereon
are impracticable, unnecessary, or contrary to the public interest.''
The Statement of Policy preserved the ``good cause'' exemption but
required that it be used ``sparingly,'' permitting its use ``only when
there is a substantial basis therefor.'' See 36 FR 13804 (July 24,
1971).
The examples identified in the June 3, 2013, notice describe some
recent situations where USDA has found that the use of notice-and-
comment procedures prolonged program implementation without a
corresponding benefit. See 78 FR 33045, 33046. The examples are not
intended to be representative of the entire universe of regulatory
actions for which USDA agencies might forgo notice-and-comment
rulemaking, nor are they necessarily indicative of whether those
agencies would forgo notice-and-comment rulemaking for those particular
programs in the future. Again, USDA emphasizes that revocation of the
1971 Statement of Policy does not mean that USDA agencies will now be
forgoing notice-and-comment rulemaking for all matters relating to
public property, loans, grants, benefits, or contracts. Rather,
agencies will no longer be required, as a matter of Departmental
policy, to use notice-and-comment procedures for this class of
rulemakings, except where otherwise required by law. Agencies will have
the discretion to determine, on a case-by-case basis, when to afford
the public an opportunity for notice and comment even where the APA
does not require it. This action will allow USDA agencies to rely on
the APA's ``public property, loans, grants, benefits, or contracts''
exemption in 5 U.S.C. 553(a)(2), rather than having to meet the
requirements of the separate APA ``good cause'' exemption in 5 U.S.C.
553(b)(B), as narrowed by the ``sparingly'' and ``substantial basis''
qualifications in the Statement of Policy.
HSUS also objected to another basis identified in the June 3, 2013,
notice for proposing to revoke the 1971 Statement of Policy.
Specifically, USDA noted that revoking the 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.'' USDA also reiterated its commitment ``to
transparency and to providing timely information to the public'' by
referring to a number of requirements applicable to Federal agencies to
make certain information available to the public in prescribed formats.
See 78 FR 33045, 33046-33047. The commenter suggested that revocation
of the Statement of Policy would result in USDA no longer using the
Federal Register, questioning whether USDA would make information on
controversial topics available to the public.
USDA emphasizes that revocation of the Statement of Policy does not
impact what constitutes a ``rule'' under the APA (see 5 U.S.C. 551(4)),
nor does it affect the types of information that are required to be
published in the Federal Register (see 5 U.S.C. 552(a)(1)). A final
rule that did not go through notice-and-comment procedures will still
be published in the Federal Register as required by the APA. Further,
revocation of the Statement of Policy will not affect the requirements
to make certain information available to the public in prescribed
formats, such as Office of Management and Budget directives regarding
announcements of funding opportunities. USDA remains firmly committed
to informing the public of its activities.
Finally, HSUS asserted that other Web sites and online channels are
generally not adequate substitutes for the APA's notice-and-comment
procedures, noting that the APA, 5 U.S.C. 553(c), requires agencies to
consider public comments on notice of proposed rulemaking. USDA agrees
that the notice-and-comment process is a useful mechanism to foster
informed decisionmaking. However, there have been, and likely will
continue to be, situations where affording the public a pre-
implementation opportunity to comment on a proposed rule is outweighed
by other public benefits, such as issuing benefits or making payments
to the public as soon as practicable. Revocation of the 1971 Statement
of Policy allows agencies to consider the circumstances and make that
determination.
Executive Order 12866
This action has been reviewed under Executive Order No. 12866 and
has been determined not to be a ``significant
[[Page 64196]]
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 the principles
set forth in the Executive Order.
Regulatory Flexibility Act
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, Public Law 96-534, as amended (5 U.S.C.
601 et seq.).
Paperwork Reduction Act
This action contains no information collections or recordkeeping
requirements under the Paperwork Reduction Act, as amended, (44 U.S.C.
3501 et seq.).
Revocation of Statement of Policy on Public Participation in Rulemaking
USDA hereby revokes the Statement of Policy, published on July 24,
1971 (36 FR 13804), which required USDA to 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.
Done at Washington, DC, this 21st day of October, 2013.
Thomas J. Vilsack,
Secretary of Agriculture.
[FR Doc. 2013-25321 Filed 10-25-13; 8:45 am]
BILLING CODE 3410-90-P