Department of Agriculture, Rural Business-Cooperative Service: Notice of Funding Opportunity for the Biofuel Producer Program for Fiscal Year 2021 – Government Accountability Office

GAO reviewed the Department of Agriculture (USDA) Rural Business-Cooperative Service’s new rule entitled “Notice of Funding Opportunity for the Biofuel Producer Program for Fiscal Year 2021.” GAO found that the final rule announces the application window, application requirements, and the availability of up to $700 million in payments to eligible biofuel producers for unexpected market losses as a result of COVID-19.
Enclosed is our assessment of USDA’s compliance with the procedural steps required by section 801(a)(1)(B)(i) through (iv) of title 5 with respect to the rule. If you have any questions about this report or wish to contact GAO officials responsible for the evaluation work relating to the subject matter of the rule, please contact Shari Brewster, Assistant General Counsel, at (202) 512-6398.
B-333849
December 22, 2021
The Honorable Debbie Stabenow
Chairwoman
The Honorable John Boozman
Ranking Member
Committee on Agriculture, Nutrition, and Forestry
United States Senate
The Honorable David Scott
Chairman
The Honorable Glenn ‘GT’ Thompson
Ranking Member
Committee on Agriculture
House of Representatives
Subject:  Department of Agriculture, Rural Business-Cooperative Service: Notice of Funding Opportunity for the Biofuel Producer Program for Fiscal Year 2021
Pursuant to section 801(a)(2)(A) of title 5, United States Code, this is our report on a major rule promulgated by the Department of Agriculture (USDA), Rural Business-Cooperative Service entitled “Notice of Funding Opportunity for the Biofuel Producer Program for Fiscal Year 2021” (Docket Number:  RBS-21-BUSINESS-0026).  We received the rule on December 13, 2021.  It was published in the Federal Register as a notice on December 13, 2021.  86 Fed. Reg. 70818.  The effective date is February 11, 2022.
USDA stated this final rule announces the application window, application requirements, and the availability of up to $700 million in payments to eligible biofuel producers for unexpected market losses as a result of COVID-19.  USDA further stated the purpose of these payments is to maintain a viable and significant biofuels market for agricultural producers that supply biofuel producers.
Enclosed is our assessment of USDA’s compliance with the procedural steps required by section 801(a)(1)(B)(i) through (iv) of title 5 with respect to the rule.  If you have any questions about this report or wish to contact GAO officials responsible for the evaluation work relating to the subject matter of the rule, please contact Shari Brewster, Assistant General Counsel, at (202) 512-6398.

Shirley A. Jones
Managing Associate General Counsel
Enclosure
cc:  Michele Brooks
  Director, Regulations Management Division
  Rural Development Innovation Center
ENCLOSURE
REPORT UNDER 5 U.S.C. § 801(a)(2)(A) ON A MAJOR RULE
ISSUED BY THE
DEPARTMENT OF AGRICULTURE,
RURAL BUSINESS-COOPERATIVE SERVICE
ENTITLED
“NOTICE OF FUNDING OPPORTUNITY FOR THE
BIOFUEL PRODUCER PROGRAM FOR FISCAL YEAR 2021”
(RBS-21-BUSINESS-0026)
(i) Cost-benefit analysis
The Department of Agriculture (USDA), Rural Business-Cooperative Service did not discuss the cost and benefits in the final rule.  In its submission to us, USDA indicated that it considered preparation of an analysis of the costs and benefits of this rule to be not applicable.
(ii) Agency actions relevant to the Regulatory Flexibility Act (RFA), 5 U.S.C. §§ 603–605, 607, and 609
USDA did not discuss the RFA in the final rule.  In its submission to us, USDA indicated that a written statement under the RFA is not applicable to this rule.
(iii) Agency actions relevant to sections 202–205 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. §§ 1532–1535
USDA did not discuss the Act in the final rule.  In its submission to us, USDA indicated that a written statement under the Act is not applicable to this rule.
(iv) Other relevant information or requirements under acts and executive orders
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
USDA did not discuss the Act in the final rule.
Paperwork Reduction Act (PRA), 44 U.S.C. §§ 3501–3520
USDA stated it requested the Office of Management and Budget conduct an emergency review by December 13, 2021, of a new information collection requirement (ICR) contained in this final rule.  The ICR is entitled “Biofuel Producer Program” and its estimated total annual burden is 996 hours.
Statutory authorization for the rule
USDA promulgated this final rule pursuant to Public Law 116-136.
Executive Order No. 12866 (Regulatory Planning and Review)
USDA did not discuss the Order in the final rule.  In its submission to us, USDA indicated that the Order is not applicable to this rule.
Executive Order No. 13132 (Federalism)
USDA did not discuss the Order in the final rule.  In its submission to us, USDA indicated that the Order is not applicable to this rule.
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