Revocation of Statement of Policy on Public Participation in Rulemaking, 64194-64196 [2013-25321]

Download as PDF 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 wreier-aviles on DSK5TPTVN1PROD with NOTICES SUMMARY: VerDate Mar<15>2010 14:52 Oct 25, 2013 Jkt 232001 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 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 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 E:\FR\FM\28OCN1.SGM 28OCN1 wreier-aviles on DSK5TPTVN1PROD with NOTICES Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Notices 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 VerDate Mar<15>2010 14:52 Oct 25, 2013 Jkt 232001 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 PO 00000 Frm 00002 Fmt 4703 Sfmt 4703 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 E:\FR\FM\28OCN1.SGM 28OCN1 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. wreier-aviles on DSK5TPTVN1PROD with NOTICES 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: VerDate Mar<15>2010 14:52 Oct 25, 2013 Jkt 232001 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. PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 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 E:\FR\FM\28OCN1.SGM 28OCN1

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