HHS Cuts Public Comment Requirement for Some Agency Functions

The Department of Health and Human Services is breaking with 50 years of agency practice and will no longer use notice-and-comment rulemaking procedures for “matters relating to agency management or personnel or to public property, loans, grants, benefits, or contracts,” Secretary Robert F. Kennedy Jr. announced Friday.

The policy statement scheduled to publish in the Federal Register Monday gives the HHS secretary more discretion and authority, and fewer administrative hurdles, in setting department policy.

Typically, agencies publish proposed rules or notices in the Federal Register, open a time-limited comment period, review and assess those comments, and then publish a final version that will go into effect.

The policy statement rescinds the department’s 1971 “policy on Public Participation in Rule Making,” known as the “Richardson Waiver,” and realigns “the Department’s rule-making procedures with the Administrative Procedure Act,” the three-page statement said.

“Effective immediately, the Richardson Waiver is rescinded and is no longer the policy of the Department. In accordance with the APA, ‘matters relating to agency management or personnel or to public property, loans, grants, benefits, or contracts,’ are exempt from the notice and comment procedures,” except “as otherwise required by law. Agencies and offices of the Department have discretion to apply notice and comment procedures to these matters but are not required to do so, except as otherwise required by law,” the statement said.

After adopting the “Richardson Waiver,” which waived the “APA’s statutory exemption from procedural rulemaking requirements for rules and regulations relating to public property, loans, grants, benefits, or contracts,” the department proposed a rule to formally confirm the policy. However, the “proposed rule was never adopted,” the policy statement said.

The waiver is “contrary to the clear text of the Administrative Procedure Act and imposes on the Department obligations beyond the maximum procedural requirements specified in the APA,” the statement said.

The statement cites legal precedent from a case, Perez v. Mortgage Bankers Association, in 2015 that found courts lack authority to impose obligations “beyond the ‘maximum procedural requirements’ specified in the APA.”