[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]


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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. 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.

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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]
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