Revocation of Statement of Policy on Public Participation in Rulemaking, 64194-64196 [2013-25321]
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64194
Notices
Federal Register
Vol. 78, No. 208
Monday, October 28, 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 Rulemaking
Office of the Secretary, USDA.
Revocation of Statement of
AGENCY:
ACTION:
Policy.
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-andcomment 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-andcomment requirement for rulemakings
relating to ‘‘public property, loans,
grants, benefits, or contracts,’’ adding
that agencies should follow the noticeand-comment procedures pending
amendment of the APA. By revoking the
1971 Statement of Policy, USDA
restores the discretion to use notice-andcomment 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: RIN0503AA51@obpa.usda.gov.
SUPPLEMENTARY INFORMATION: On June 3,
2013, USDA published for comment a
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SUMMARY:
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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-andcomment 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 preimplementation opportunity to
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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 noticeand-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
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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-andcomment 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 noticeand-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-andcomment rulemaking, but rather
included a ‘‘cherry-picked handful of
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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 noticeand-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-andcomment rulemaking, nor are they
necessarily indicative of whether those
agencies would forgo notice-andcomment 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-andcomment procedures for this class of
rulemakings, except where otherwise
required by law. Agencies will have the
discretion to determine, on a case-bycase 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
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64195
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-andcomment 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-andcomment 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 preimplementation 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
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64196
Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Notices
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]
amendment to this system of records
was published in the Federal Register
on September 4, 2013.
DATES: The system of records becomes
effective on October 28, 2013.
ADDRESSES: For a copy of the system of
records please mail requests to Lanetta
Gray, U.S. Department of Commerce,
Office of the General Counsel, Room
5875 HCHB, 1401 Constitution Avenue
NW., Washington, DC 20230.
FOR FURTHER INFORMATION CONTACT:
Lanetta Gray, Executive Officer, Office
of the General Counsel, 202–482–4683.
SUPPLEMENTARY INFORMATION: On
September 4, 2013, the Department of
Commerce published a notice
requesting comments on a proposed
Privacy Act System of Records entitled
Commerce/Department-20, Biographical
Files (78 FR 171). In that notice, the
Department announced its intent to
amend that system of records to make
certain changes, including retitling the
system of records to COMMERCE/
DEPARTMENT-20, Biographical Files
and Social Networks. The amendment
serves to modify the system of records
by generally updating the purpose of the
system, updating routine uses, and
updating practices for electronically
storing, retrieving, and safeguarding
records in the System. No comments
were received in response to the request
for comments. By this notice, the
Department is adopting the proposed
system as final without changes
effective October 28, 2013.
Dated: October 22, 2013.
Brenda Dolan,
Freedom of Information and Privacy Act
Officer, U.S. Department of Commerce.
Foreign-Trade Zones Board
[S–127–2013]
DEPARTMENT OF COMMERCE
Approval of Subzone Status: Pillow
Kingdom, Inc., Aurora, Colorado
Foreign-Trade Zones Board
DEPARTMENT OF COMMERCE
Department of Commerce.
Notice; Commerce/Department20, Biographical Files.
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ACTION:
The Department of Commerce
(Commerce) publishes this notice to
announce the effective date of a Privacy
Act System of Records entitled
Commerce/Department-20, Biographical
Files. The notice of proposed
SUMMARY:
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14:52 Oct 25, 2013
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BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
Foreign-Trade Zone 3—San Francisco,
California; Application for Subzone;
Phillips 66 Company; Rodeo, California
AGENCY:
[FR Doc. 2013–25212 Filed 10–25–13; 8:45 am]
BILLING CODE 3510–BW–P
[B–89–2013]
Privacy Act Altered System of Records
Dated: October 17, 2013.
Andrew McGilvray,
Executive Secretary.
[FR Doc. 2013–25420 Filed 10–25–13; 8:45 am]
BILLING CODE 3410–90–P
[Docket No. 130730666–3877–02]
The proposed subzone (507.35 acres)
is located at 1380 San Pablo Avenue,
Rodeo, California. A notification of
proposed production activity has been
submitted and will be published
separately for public comment.
In accordance with the FTZ Board’s
regulations, Christopher Kemp of the
FTZ Staff is designated examiner to
review the application and make
recommendations to the FTZ Board.
Public comment is invited from
interested parties. Submissions shall be
addressed to the FTZ Board’s Executive
Secretary at the address below. The
closing period for their receipt is
December 9, 2013. Rebuttal comments
in response to material submitted
during the foregoing period may be
submitted during the subsequent 15-day
period to December 23, 2013.
A copy of the application will be
available for public inspection at the
Office of the Executive Secretary,
Foreign-Trade Zones Board, Room
21013, U.S. Department of Commerce,
1401 Constitution Avenue NW.,
Washington, DC 20230–0002, and in the
‘‘Reading Room’’ section of the FTZ
Board’s Web site, which is accessible
via www.trade.gov/ftz.
For further information, contact
Christopher Kemp at
Christopher.Kemp@trade.gov or (202)
482–0862.
An application has been submitted to
the Foreign-Trade Zones (FTZ) Board by
the City and County of San Francisco,
grantee of FTZ 3, requesting subzone
status for the facility of Phillips 66
Company (Phillips 66), located in
Rodeo, California. The application was
submitted pursuant to the provisions of
the Foreign-Trade Zones Act, as
amended (19 U.S.C. 81a–81u), and the
regulations of the FTZ Board (15 CFR
part 400). It was formally docketed on
October 17, 2013.
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On August 21, 2013, the Executive
Secretary of the Foreign-Trade Zones
(FTZ) Board docketed an application
submitted by the City and County of
Denver, grantee of FTZ 123, requesting
subzone status subject to the existing
activation limit of FTZ 123, on behalf of
Pillow Kingdom, Inc., in Aurora,
Colorado.
The application was processed in
accordance with the FTZ Act and
Regulations, including notice in the
Federal Register inviting public
comment (78 FR 52758–52759, 08–26–
2013). The FTZ staff examiner reviewed
the application and determined that it
meets the criteria for approval. Pursuant
to the authority delegated to the FTZ
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Agencies
[Federal Register Volume 78, Number 208 (Monday, October 28, 2013)]
[Notices]
[Pages 64194-64196]
From the Federal Register Online via the Government Printing 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: RIN0503AA51@obpa.usda.gov.
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