Use of Direct Final Rulemaking

DEPARTMENT OF AGRICULTURE

Food and Consumer Service

7 CFR Chapter II

Use of Direct Final Rulemaking

AGENCY: Food and Consumer Service, USDA.

ACTION: Policy statement.

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SUMMARY: The Food and Consumer Service is implementing a new rulemaking

procedure to expedite making noncontroversial changes to regulations.

Rules that the agency judges to be noncontroversial and unlikely to

result in adverse comments will be published as ``direct final'' rules.

(``Adverse comments'' are comments that suggest that a rule should not

be adopted or suggest that a change should be made to the rule.) Such

direct final rules will advise the public that no adverse comments are

anticipated, and that unless written adverse comments or written

notices of intent to submit adverse comments are postmarked within the

comment period, the revisions made by the rule will, in most instances,

be effective 60 days from the date the direct final rule is published

in the Federal Register. This new policy should expedite the

promulgation of noncontroversial rules by reducing the time that would

be required to develop, review, clear, and publish separate proposed

and final rules.

FOR FURTHER INFORMATION CONTACT: Lillie Ragan, Assistant Branch Chief,

Household Programs Branch, Food Distribution Division, Food and

Consumer Service, U.S. Department of Agriculture, Park Office Center,

Room 502, 3101 Park Center Drive, Alexandria, VA 22302-1594, or

telephone (703) 305-2662.

SUPPLEMENTARY INFORMATION: In the interest of implementing needed

changes in program administrative procedures in a more expeditious

manner, the Food and Consumer Service (FCS) plans to improve the

efficiency of its regulatory procedures by employing the rulemaking

technique known as ``direct final rulemaking'' to promulgate some of

its rules.

The Direct Final Rule Process

Rules that the agency judges to be noncontroversial and unlikely to

result in adverse comments may be published as direct final rules. The

direct final rules will specify a comment period of at least 30 days.

Such direct final rules will advise the public that no adverse comments

are anticipated, and that unless written adverse comments or written

notices of intent to submit adverse comments are postmarked within the

comment period, the revisions made by the rule will, in most instances,

be effective 60 days from the date the direct final rule is published

in the Federal Register. In instances in which a waiting period other

than 60 days is established, the effective date will be specified in

the rule.

``Adverse comments'' means comments that suggest that the rule

should not be adopted, or that suggest that a change should be made to

the rule. A comment expressing support for the rule as published would

obviously not be considered adverse. Neither would a comment suggesting

that requirements in the rule should, or should not, be employed by FCS

in other programs or situations outside the scope of the direct final

rule.

In accordance with the rulemaking provisions of the Administrative

Procedure Act (5 U.S.C. 553), this procedure gives the public general

notice of FCS' intent to adopt a rule, and gives interested persons an

opportunity to participate in the rulemaking through submission of

comments. The major feature of direct final rulemaking is that if FCS

receives neither written adverse comments nor written notices of intent

to submit adverse comments that are postmarked within the comment

period, the rule will, in most instances, be effective 60 days from the

date the direct final rule is published in the Federal Register.

If FCS receives timely adverse comments or notices of intent to

submit such comments, a notice of withdrawal of the direct final rule

will be published in the Federal Register and a proposed rule will be

published establishing a comment period for the rulemaking action.

Following the close of the comment period, the comments will be

considered, and a final rule addressing the comments will be published.

As discussed above, absent timely adverse comments or notices to

submit such comments, the rule will, in most instances, become

effective 60 days following the rule's publication. However, FCS will

publish a notice in the Federal Register indicating that no adverse

comments were received on the direct final rule, and confirming that it

is effective on the date indicated in the direct final rule.

In some instances, FCS may choose to publish a document in the

proposed rules section of the same issue of the Federal Register

proposing approval of and soliciting comments on the same provisions

contained in the direct final rule. In such instances, if timely

written adverse comments or written notices of intent to submit adverse

comments are received in response to the direct final rule, the direct

final rule will be withdrawn and the comments received will be

addressed, along with comments received in response to the proposed

rule, in a subsequent final rule.

Determining When To Use Direct Final Rulemaking

Not all FCS rules are good candidates for direct final rulemaking.

Many FCS rules address more complex issues for which the public may

have a variety of opinions to offer on the need for the rule, or

alternative methods for achieving the intended results. In these cases,

FCS plans to continue to publish a proposed rule, and establish a

comment period to allow submission of comments, followed by a final

rule addressing the comments.

FCS plans to use direct final rulemaking on a case-by-case basis

when we do not anticipate adverse comments. The decision to use direct

final rulemaking for a rule would be based on our experience with

similar rules. If similar rules were published in the past as proposals

that did not elicit adverse comments, we would consider publishing such

rules in the future as direct final rules.

[[Page 55142]]

Dated: October 15, 1997.

Yvette S. Jackson,

Acting Administrator, Food and Consumer Service.

[FR Doc. 97-28062 Filed 10-22-97; 8:45 am]

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