[Federal Register Volume 90, Number 40 (Monday, March 3, 2025)]
[Rules and Regulations]
[Page 11029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-03300]
[[Page 11029]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of the Secretary
45 CFR Subtitle A
Policy on Adhering to the Text of the Administrative Procedure
Act
AGENCY: Office of the Secretary, Department of Health and Human
Services.
ACTION: Policy statement.
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SUMMARY: The Department of Health and Human Services' (the Department)
Immediate Office of the Secretary is rescinding the policy on Public
Participation in Rule Making (Richardson Waiver) and re-aligning the
Department's rule-making procedures with the Administrative Procedure
Act.
DATES: March 3, 2025.
FOR FURTHER INFORMATION CONTACT: Sean R. Keveney, Acting General
Counsel, Office of the General Counsel, HHS. 200 Independence Avenue
SW, Washington, DC 20201. 202-690-7741.
SUPPLEMENTARY INFORMATION: The Administrative Procedure Act (APA)
establishes procedures for the issuance of rules and regulations. 5
U.S.C. 553. An agency generally is required to publish a notice of
proposed rulemaking in the Federal Register; give interested persons an
opportunity to participate in the rulemaking through the submission of
written data, views, or arguments; and publish a final rule that is
accompanied by a statement of the rule's basis and purpose. 5 U.S.C.
553. The APA exempts from these requirements ``matter(s) relating to
agency management or personnel or to public property, loans, grants,
benefits, or contracts.'' 5 U.S.C. 553(a)(2). The APA also permits an
agency to forgo these requirements for ``good cause'' when the agency
finds that the procedures are ``impracticable, unnecessary, or contrary
to the public interest.'' 5 U.S.C. 553(b)(B).
In a 1971 Federal Register document, the Department adopted a
policy that waived the APA's statutory exemption from procedural
rulemaking requirements for rules and regulations relating to public
property, loans, grants, benefits, or contracts (Richardson Waiver). 36
FR 2532 (Feb. 5, 1971). The Richardson Waiver thus required the
Department to use the APA's notice and comment rulemaking procedures
for these types of matters. The policy also instructed the Department
to use the good cause exception ``sparingly.'' Id. The Department later
proposed a rule to formally confirm the policy regarding the
Department's use of rulemaking procedures for rules and regulations
relating to public property, loans, grants, benefits, or contracts. 47
FR 26860 (June 22, 1982). The proposed rule was never adopted.
The policy waiving the statutory exemption for rules relating to
public property, loans, grants, benefits, or contracts is contrary to
the clear text of the APA and imposes on the Department obligations
beyond the maximum procedural requirements specified in the APA. See
Perez v. Mortgage Bankers Ass'n, 575 U.S. 92, 100 (2015) (finding that
courts lack authority to impose obligations ``beyond the `maximum
procedural requirements' specified in the APA''). The text of the APA
recognizes that it is necessary and appropriate to issue rules relating
to agency management or personnel or to public property, loans, grants,
benefits, or contracts without notice and comment procedures. It also
is contrary to the clear text of the APA to use the good cause
exception ``sparingly.'' The extra-statutory obligations of the
Richardson Waiver impose costs on the Department and the public, are
contrary to the efficient operation of the Department, and impede the
Department's flexibility to adapt quickly to legal and policy mandates.
Effective immediately, the Richardson Waiver is rescinded and is no
longer the policy of the Department. In accordance with the APA,
``matters relating to agency management or personnel or to public
property, loans, grants, benefits, or contracts,'' are exempt from the
notice and comment procedures of 5 U.S.C. 553, except as otherwise
required by law. Agencies and offices of the Department have discretion
to apply notice and comment procedures to these matters but are not
required to do so, except as otherwise required by law. Additionally,
the good cause exception should be used in appropriate circumstances in
accordance with the requirements of the APA. The Department will
continue to follow notice and comment rulemaking procedures in all
instances in which it is required to do so by the statutory text of the
APA.
Robert F. Kennedy, Jr.,
Secretary, Department of Health and Human Services.
[FR Doc. 2025-03300 Filed 2-28-25; 8:45 am]
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