July 26, 2018
The Honorable Pat Roberts
The Honorable Debbie Stabenow
Agriculture, Nutrition and Forestry Committee
United States Senate
The Honorable K. Michael Conaway
The Honorable Collin C. Peterson
Committee on Agriculture
House of Representatives
Matter: Department of Agriculture, Agricultural Services Agency: 2017 Wildfire and Hurricane Compensation Program
Pursuant to Section 801(a)(2)(A) of Title 5 of the United States Code, here is our report on a major rule promulgated by the Department of Agriculture, Farm Service Agency (FSA) titled “2017 Wildfires and Hurricanes Indemnity Program” (RIN: 0560-AI39). We received the rule on July 17, 2018. It was published in the Federal Register as final rule on July 18, 2018. 83 Fed. Reg. 33,795. The effective date of the final rule is July 18, 2018.
The final rule provides payments to eligible growers who suffered losses to eligible crops, trees, bushes and vines resulting from hurricanes and wildfires in calendar year 2017, such as the authorizes the Bipartisan Budget Act of 2018 (BBA). This rule outlines the administrative provisions, eligibility requirements, application procedures, and payment calculations for the 2017 Wildfire and Hurricane Compensation Program (WHIP).
The Congressional Review Act (CRA) requires 60 days for the effective date of a major rule from the date of publication in the Federal Register or receipt of the rule by Congress, whichever is later. 5 USC § 801(a)(3)(A). This Final Rule was received on July 17, 2018. It was published in the Federal Register on July 18, 2018 and has a declared effective date of July 18, 2018. 83 Fed. Reg. 33,795. Therefore, the final rule does not have the required 60-day delay in its effective date.
The 60-day delay from the effective date may, however, be waived if the Agencies find for just cause that such delay is impractical, unnecessary, or contrary to the public interest, and if the Agencies include a statement of findings and their reasons in the issued rule. . 5 USC § 808(2). The FSA has found a good reason to publish these regulations in force as soon as they are published in the Federal Register. The FSA said beneficiaries of the rule suffered significant damage due to losses from hurricanes and wildfires that occurred in 2017. The FSA said it would be against the public interest to delay the effective date as this would delay the implementation of WHIP 2017 as required. by BBA. In addition, the FSA said the regulations must be efficient in giving producers enough time to submit payment claims.
Attached is our assessment of the FSA’s compliance with the procedural steps required by Title 5 Section 801(a)(1)(B)(i) through (iv) with respect to the rule. Our review of the agency’s submissions tells us that the FSA has complied with the applicable requirements.
If you have any questions about this report or would like to contact GAO officials responsible for valuation work relating to the subject matter of the rule, please contact Shirley A. Jones, Assistant General Counsel, at (202) 512-8156 .
Robert J. Cramer
Associate Legal Director
cc: Deirdre Holder
Director, Regulatory Scrutiny Group
Agricultural Services Agency
REPORT UNDER 5 USC § 801(a)(2)(A) ON A MAJOR RULE
ISSUED BY THE
THE MINISTER OF AGRICULTURE,
AGRICULTURAL SERVICE AGENCY
“Wildfire and Hurricane Compensation Program 2017”
(i) Cost-benefit analysis
The Department of Agriculture, Farm Service Agency (FSA) said the Bipartisan Budget Act 2018 (BBA) provided up to $2.36 billion for the Wildfire and Hurricane Compensation Program (WHIP ) of 2017, but early estimates suggest total WHIP payments may be lower. The FSA further said that in addition to payments to growers, WHIP funds will be used for a $340 million block grant to Florida that will provide additional assistance to growers whose trees are damaged. The agency also said that the federal government would need to spend approximately $10 million to administer the 2017 WHIP and, due to WHIP 2017’s mandate that producers purchase insurance, the government would incur approximately $100 million in costs. additional grants. The required policies will cost producers approximately $60 million. The FSA estimates that the savings from limiting payments will be at least $50 million.
(ii) Agency Actions Regarding the Regulatory Flexibility Act (RFA), 5 USC §§ 603-605, 607 and 609
The FSA said the rule is not subject to RFA because the FSA is not required by the Administrative Procedure Act or any other law to publish a proposed rule for this regulation.
(iii) Agency Actions Regarding Sections 202-205 of the Unfunded Warrants Reform Act of 1995, 2 USC §§ 1532-1535
The FSA said the rule does not contain any federal mandates, as defined by law, for state, local and tribal governments, or the private sector, and therefore the rule is not subject to the requirements of the law. .
(iv) Other relevant information or requirements under laws and decrees
Administrative Procedure Act, 5 USC §§ 551and following.
The FSA said notice and comment procedures were not required under 5 USC § 553 because the rule involves a matter relating to public property, loans, grants, benefits or contracts. Since this rule is about benefits, the FSA published the rule without a prior opportunity to comment.
Red Tape Reduction Act (PRA), 44 USC §§ 3501-3520
The FSA submitted the rule to the Office of Management and Budget (OMB) with an information gathering request, and the OMB granted a 6-month emergency information gathering. Given that the information gathering activities will continue for more than 6 approved months, the FSA has solicited comments and asked the OMB to approve a 3 year information gathering.
Legal authorization of the rule
The FSA promulgated the rule under 7 USC §§ 1531, 4501; 16 USC § 3801 et note; 19 USC § 2497; title III, ed. L. no. 109-234; title IX, ed. L. No. 110-28; § 748, pub. L. No. 111-80, and Title I, Pub. L. no. 115-123.
Executive Order No. 12,866 (Planning and Regulatory Review)
The FSA said it submitted the rule to the OMB for review and included a cost-benefit analysis in the final rule.
Executive Order No. 13,132 (Federalism)
The FSA said the rule had no direct effect on states, federal-state relations, or the division of powers and responsibilities between different levels of government.