It’s as Clear as Mud

October 28, 2013 | By Jerry Ashworth | Post a Comment

mud-1080381-mLet me say this right up front — can someone from the Department of Agriculture please contact me and explain your notice today in the Federal Register in layman’s terms?  Because, frankly, I’m lost. And I’m not the only one. When I read the title of the notice — “Revocation of Statement of Policy on Public Participation in Rulemaking” — to my wife and asked her what she thought that meant, she said, “It sounds like they’re not allowing the public to comment on rules.” I thought the same thing.

To summarize, USDA is revoking a 1971 statement of policy titled “Public Participation in Rulemaking,” that required agencies in USDA to follow the Administrative Procedure Act’s 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 that 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,” the agency states in today’s notice, adding that “this action also improves USDA’s ability to implement programs efficiently.”

“When appropriate?” Isn’t it always appropriate?

Back in June, USDA published a notice requesting comments about its plan to revoke this statement of policy. Back then, USDA aimed to clarify the revocation to say that it “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 first commenter to the proposal shared my thought on this, asserting 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. Good point.

However, USDA pointed out 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, 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, then the agency may use the discretion afforded by the APA to use notice-and-comment procedures even though not required by 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 says. I’m getting lost here in all the double negatives.

What we need here is for someone from USDA to “bottom line” this and make it a bit easier to understand. I’m quite sure USDA agencies will continue to provide notice-and-comment on most actions involving grants and loans, but it would be helpful if USDA could provide an example or two in which it would not.

Reading this, I think back to the movie “Jerry Maguire” and that now-famous line, “You had me a hello.” Well, in this instance, all I can say to USDA is “You lost me at ‘Notice’.”

If you can provide us with some more detail on this notice that will make it easier for me and others out there to understand, please let us hear from you.

 

 

 

 

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