Revocation of Statement of Policy on Public Participation in Rule Making, 33045-33047 [2013-13068]
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33045
Notices
Federal Register
Vol. 78, No. 106
Monday, June 3, 2013
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.
DEPARTMENT OF AGRICULTURE
Office of the Secretary
[0503–AA51]
Revocation of Statement of Policy on
Public Participation in Rule Making
Office of the Secretary, USDA.
Proposed revocation of
Statement of Policy; request for
comments.
AGENCY:
ACTION:
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,
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SUMMARY:
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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: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Email: RIN0503AA51@obpa.usda.gov.
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 https://
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: RIN0503AA51@obpa.usda.gov.
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
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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 twomonth 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
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33046
Federal Register / Vol. 78, No. 106 / Monday, June 3, 2013 / Notices
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,
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16:40 May 31, 2013
Jkt 229001
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-andcomment 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.
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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.
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 (https://
www.grants.gov) and Benefits.gov
(https://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
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-andcomment 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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Federal Register / Vol. 78, No. 106 / Monday, June 3, 2013 / Notices
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 https://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
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16:40 May 31, 2013
Jkt 229001
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]
BILLING CODE 3410–90–P
DEPARTMENT OF AGRICULTURE
Forest Service
Humboldt-Toiyabe National Forest,
Carson Ranger District Mt. Rose Ski
Tahoe—Atoma Area Environmental
Impact Statement
Forest Service, USDA.
Notice of Intent to prepare an
Environmental Impact Statement (EIS).
AGENCY:
ACTION:
The Humboldt-Toiyabe
National Forest (HTNF), Carson Ranger
District, will prepare an environmental
impact statement to analyze the effects
of a proposal from Mt. Rose Ski Tahoe
(Mt. Rose) to expand its lift and terrain
network. The project is located
approximately 12 miles west of the
intersection of Mt. Rose Highway
(Nevada State Route 431) and U.S. 395,
immediately north of the Mt. Rose base
lodge and parking area. The project is
located on both private and National
Forest System (NFS) land within
Washoe County, Nevada.
DATES: Comments concerning the scope
of the analysis would be most helpful if
received within 30 days of the
publication of this notice in the Federal
Register. At this time, the draft EIS is
expected to be available for public
review in fall/winter 2013, with a final
EIS available in spring/summer 2014.
ADDRESSES: Written comments can be
submitted by any of the following
methods:
• Electronic comments: Select the
‘‘Comment on this Project’’ link on the
HTNF Web site at https://www.fs.fed.us/
nepa/
nepa_project_exp.php?project=41487.
• U.S. Mail: Mail to Linda Crawley,
Team Leader, Humboldt-Toiyabe
National Forest, 1200 Franklin Way,
Sparks, Nevada 89431.
• Fax to 775–355–5399. Please use a
fax cover sheet and include ‘‘Mt. Rose
Ski Tahoe—Atoma Area EIS’’ in the
subject line.
• Hand Delivered: 1200 Franklin
Way, Sparks, Nevada 89431, 8:00 a.m.–
4:30 p.m., Monday through Friday,
except federal holidays.
SUMMARY:
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33047
For
further information and/or to have your
name added to our mailing list, please
contact Linda Crawley, HumboldtToiyabe National Forest, 775–355–5377,
lcrawley@fs.fed.us. Individuals who use
telecommunication devices for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 1–800–877–8339
between 8 a.m. and 8 p.m., Eastern
Time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
Purpose and Need for Action: The
purpose of the proposed project is to
enhance the skiing experience at Mt.
Rose and meet the ever-changing
expectations of the recreating public.
Two primary needs have been
identified: (1) Provide additional terrain
at Mt. Rose that is comfortable and
appropriate for low-level skiers and
riders. (2) Enhance Mt. Rose’s ability to
provide a consistent and quality snow
surface on key ski terrain throughout the
season.
Although Mt. Rose is well known for
its abundance of expert terrain, due to
the topography of public and private
lands that compose the existing ski area,
it suffers from a lack of terrain suitable
for low-level skiers and riders. As a
result, Mt. Rose struggles to provide a
full range of beginner, novice, and
intermediate terrain that is necessary for
a logical ‘‘learning progression,’’ which
is critical for skiers and riders as they
gain skills and confidence. Also, it is
common for advanced intermediate and
expert skiers/riders to descend through
lower-level terrain on their way to the
base area. This mixing of ability levels
is intimidating for lower levels skiers
and riders, and is inconsistent with the
type of recreational offering that Mt.
Rose strives to provide.
In addition, inefficiencies in Mt.
Rose’s snowmaking system prevent the
resort from capitalizing on intermittent
periods of cold temperatures within
which snow can be most efficiently
produced.
Proposed Action: The HTNF proposes
to authorize a special use permit (SUP)
boundary adjustment on NFS land to
create the Atoma lift and trail ‘‘Pod’’ to
the north of the Mt. Rose Highway. The
proposed Atoma trail plan includes 11
defined trails, and takes advantage of
both the location and topography of the
area while strategically preserving large
tree islands that would be appropriate
for lower-level skiers and riders to
navigate. No new roads are proposed;
the design makes use of the existing
road network (including the Old Mt.
Rose Highway) by incorporating it into
the trail plan. These existing roads will
also facilitate construction and
FOR FURTHER INFORMATION CONTACT:
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Agencies
[Federal Register Volume 78, Number 106 (Monday, June 3, 2013)]
[Notices]
[Pages 33045-33047]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13068]
========================================================================
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. 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.
-----------------------------------------------------------------------
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: https://www.regulations.gov. Follow the
instructions for submitting comments.
Email: RIN0503AA51@obpa.usda.gov. 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
https://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: RIN0503AA51@obpa.usda.gov.
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 (https://www.grants.gov) and
Benefits.gov (https://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 https://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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