The Congressional Review Act: Determining Which “Rules” Must Be Submitted to Congress

The Congressional Review Act: Determining

Which “Rules” Must Be Submitted to

Congress

Updated October 22, 2024

Congressional Research Service

https://crsreports.congress.gov

R45248

SUMMARY

The Congressional Review Act: Determining

Which “Rules” Must Be Submitted to Congress

The Congressional Review Act (CRA) is a tool Congress can use to review federal agency

actions that fall under the statutory category of “rules.” The CRA requires that agencies report

their rules to Congress and provides special fast-track procedures under which Congress can

consider legislation to overturn those rules. A joint resolution of disapproval will become

effective once both houses of Congress pass a joint resolution and it is signed by the President, or

if Congress overrides the President’s veto.

R45248

October 22, 2024

Valerie C. Brannon

Legislative Attorney

Maeve P. Carey

Specialist in Government

Organization and

Management

The CRA generally adopts a broad definition of the word “rule” from the Administrative

Procedure Act (APA), defining a “rule” as “the whole or a part of an agency statement of general

or particular applicability and future effect designed to implement, interpret, or prescribe law or

policy or describing the organization, procedure, or practice requirements of an agency.”

The CRA, however, provides three exceptions to this broad definition:

•

any rule of particular applicability, including a rule that approves or prescribes for the future rates, wages,

prices, services, or allowances therefor, corporate or financial structures, reorganizations, mergers, or

acquisitions thereof, or accounting practices or disclosures bearing on any of the foregoing;

•

•

any rule relating to agency management or personnel; or

any rule of agency organization, procedure, or practice that does not substantially affect the rights or

obligations of non-agency parties.

The class of rules the CRA covers is broader than the category of rules that are subject to the APA’s notice-and-comment

requirements because the CRA does not exclude interpretive rules or policy statements. As such, some agency actions, such

as guidance documents, that are not subject to notice-and-comment rulemaking procedures may still be considered rules

under the CRA and thus could be overturned using the CRA’s procedures.

Even if an agency action falls under the CRA’s definition of “rule,” however, the fast-track procedures for considering

legislation to overturn the rule only become available when the agency submits the rule to Congress. In many cases in which

agencies take actions that meet the CRA’s definition of “rule” but have not gone through notice-and-comment rulemaking

procedures, agencies fail to submit those rules. Thus, questions have arisen as to how Members can avail themselves of the

CRA’s special fast-track procedures if the agency has not submitted the action to Congress.

To protect its prerogative to review agency rules under the CRA, Congress and the Government Accountability Office

(GAO) have developed an ad hoc process in which Members can request that GAO provide a formal legal opinion on

whether a particular agency action qualifies as a rule under the CRA. If GAO concludes that the action in question falls

within the CRA’s definition of “rule,” Congress has treated the publication of the GAO opinion in the Congressional Record

as constructive submission of the rule. In other words, an affirmative opinion from GAO can allow Congress to use the CRA

procedures to consider legislation overturning an agency action despite the agency not submitting that action to Congress.

Members of Congress have introduced a number of CRA joint resolutions of disapproval based on these GAO opinions, and

in 2018, Congress enacted its first joint resolution disapproving of an action through this process.

Congressional Research Service

Congressional Review Act: Which “Rules” Must Be Submitted to Congress

Contents

Overview of the CRA ...................................................................................................................... 2

Types of Agency Actions Covered by the CRA .............................................................................. 3

Determining Whether an Agency Action Is an APA Rule or Other Agency Action .................. 7

Identifying “Rules” Under the APA .................................................................................... 7

Differentiating “Rules” from “Orders” Under the APA ...................................................... 9

Identifying CRA Exceptions ................................................................................................... 12

Rules of Particular Applicability ....................................................................................... 13

Rules Relating to Agency Management or Personnel ....................................................... 14

Rules of Agency Organization, Procedure, or Practice ..................................................... 16

CRA Requirement for Submission of Rules .................................................................................. 19

Agency Compliance with Submission Requirement ............................................................... 21

Submission of Notice-and-Comment Rules Versus Other Types of Documents .............. 22

GAO’s Role in Determining Whether an Agency Action Is Covered by the CRA ................. 23

Origin and Basis of GAO’s Role ...................................................................................... 23

Congressional Response to GAO Opinions Since 1996 ................................................... 25

Consequences of GAO Opinions ............................................................................................ 26

Figures

Figure 1. Determining Whether an Agency Action Is a “Rule” Under the CRA: Two-Part

Inquiry .......................................................................................................................................... 5

Tables

Table B-1. GAO Opinions on Whether Certain Agency “Rules” Are Covered by the

Congressional Review Act ......................................................................................................... 30

Appendixes

Appendix A. P.L. 104-19 Submission Form for Rules Under the CRA ........................................ 28

Appendix B. Summary of GAO Opinions .................................................................................... 30

Contacts

Author Information........................................................................................................................ 35

Congressional Research Service

Congressional Review Act: Which “Rules” Must Be Submitted to Congress

T

he Congressional Review Act (CRA) is a tool Congress can use to review federal agency

actions that fall under the statutory category of “rules.”1 Enacted in 1996 as part of the

Small Business Regulatory Enforcement Fairness Act, the CRA requires agencies to report

the issuance of “rules” to Congress and provides Congress with special fast-track procedures

under which to consider legislation to overturn those rules.2 A joint resolution of disapproval

overturning a rule will become effective once both houses of Congress pass a joint resolution and

it is signed by the President, or if Congress overrides the President’s veto.3

For an agency’s action to be eligible for review under the CRA, it must qualify as a “rule” as

defined by the statute.4 The class of rules covered by the CRA is broader than the category of

rules that are subject to the Administrative Procedure Act’s (APA’s) notice-and-comment

requirements.5 As such, some agency actions, such as guidance documents, that are not subject to

notice-and-comment rulemaking procedures may still be considered rules under the CRA and thus

can be overturned using the CRA’s procedures.

Under the text of the CRA, the fast-track procedures for considering legislation to overturn rules

become available only when agencies submit their rules to Congress.6 In many cases in which

agencies take actions that meet the legal definition of a “rule” but have not gone through noticeand-comment rulemaking procedures, however, agencies fail to submit those rules.7 Thus,

questions have sometimes arisen as to how Members can use the CRA’s procedures to overturn

agency actions when an agency does not submit the action to Congress.

To protect its ability to use the CRA to disapprove covered rules that have not been submitted,

Congress has developed a practice where Members can request a legal opinion from the

Government Accountability Office (GAO) addressing whether the specific action in question is

covered by the CRA’s definition of “rule” and should have been submitted. A GAO opinion

stating that a specific agency action should have been submitted under the CRA can then stand in

for the agency having submitted the rule. Recent practice has been for Members to publish the

GAO opinion in the Congressional Record, and the date that the opinion is published in the

Congressional Record serves as the starting date for the CRA’s timelines.8

1 Contract with America Advancement Act of 1996, Pub. L. No. 104-121, tit. II, § 251, 110 Stat. 868 (Congressional

Review Act (CRA)). 5 U.S.C. §§ 801–808.

2 Contract with America Advancement Act of 1996, Pub. L. No. 104-121, tit. II, 110 Stat. 857 (Small Business

Regulatory Enforcement Fairness Act). For a more detailed overview of the CRA, see CRS Report R43992, The

Congressional Review Act (CRA): Frequently Asked Questions, by Maeve P. Carey and Christopher M. Davis (2021).

3 In other words, a CRA resolution disapproving a particular rule must fulfill constitutional requirements for the

passage of legislation: either the President must sign the legislation, or Congress must override the President’s veto of

the resolution. See U.S. CONST. art. I, § 7, cl. 3. See also INS v. Chadha, 462 U.S. 919, 956–58 (1983) (holding that

statutory legislative veto procedure violated constitutional requirements of bicameralism and presentment).

4 5 U.S.C. § 804(3).

5 Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946). Compare 5 U.S.C. § 553, with 5 U.S.C.

§ 804(3). As discussed below, while the CRA is slightly narrower in the sense that it excludes rules of particular

applicability, which are subject to notice-and-comment requirements, it also includes multiple other categories of rules

that are excluded from 5 U.S.C. § 553.

6 See 5 U.S.C. § 801(a)(1)(A) (requiring agencies to submit their rules to Congress and the Government Accountability

Office (GAO)).

7 See infra “Agency Compliance with Submission Requirement.”

8 See, e.g., 169 CONG. REC. S903 (daily ed. Mar. 22, 2023) (statement of Sen. Bill Cassidy).

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To date, 20 CRA joint resolutions of disapproval have become law,9 one of which overturned a

guidance document pursuant to an opinion issued by GAO.10 This report first describes what

types of agency actions can be overturned using the CRA by closely examining the statutory

definition of “rule.” The report then briefly discusses the CRA’s requirement for the submission

of rules and examines the history and practice of GAO’s involvement in determining what rules

should be submitted.

Overview of the CRA

Under the CRA, before a rule can take effect, an agency must submit to both houses of Congress

and GAO a report containing a copy of the rule and information on the rule, including a summary

of the rule, a designation of whether the rule is “major,” and the proposed effective date of the

rule.11 For most rules determined to be “major,” the agency must allow for an additional period to

elapse before the rule can take effect—primarily to give Congress additional time to consider

taking action on rules with the greatest economic impact—and GAO must submit a report on

each major rule to the House and Senate committees of jurisdiction within 15 days of submission

or publication.12 The report is to contain GAO’s assessment of the agency’s compliance with

various procedural steps in the rulemaking process.

After a rule is received and published, Congress has the opportunity to use fast-track procedures

to overturn the rule.13 A Member must introduce a resolution of disapproval, and Congress must

take action on it, within certain time periods specified in the CRA to take advantage of the fasttrack procedures (which primarily exist in the Senate).14 These procedures include the following:

•

•

a Senate committee can be discharged from the further consideration of a CRA

joint resolution disapproving the rule by a petition signed by at least thirty

Senators;

any Senator may make a nondebatable motion to proceed to consider the

disapproval resolution, and the motion to proceed requires a simple majority for

adoption; and

9 The 20 disapproved rules are listed in the appendix of CRS Report R43992, The Congressional Review Act (CRA):

Frequently Asked Questions, by Maeve P. Carey and Christopher M. Davis (2021).

10 See S.J. Res. 57, 115th Cong. (2018) (enacted) which became the Indirect Auto Lending and Compliance with the

Equal Credit Opportunity Act, Pub. L. No. 115-172, 132 Stat. 1290 (2018). The Indirect Auto Lending and Compliance

with the Equal Credit Opportunity Act overturned the BUREAU OF CONSUMER FINANCIAL PROTECTION, INDIRECT AUTO

LENDING AND COMPLIANCE WITH THE EQUAL CREDIT OPPORTUNITY ACT, CFPB BULLETIN 2013-02 (March 21, 2013),

https://files.consumerfinance.gov/f/201303_cfpb_march_-Auto-Finance-Bulletin.pdf.

11 5 U.S.C. § 801(a)(1)(A).

The CRA defines a “major rule” as

any rule that the Administrator of the Office of Information and Regulatory Affairs [OIRA] of the

Office of Management and Budget [OMB] finds has resulted in or is likely to result in—(A) an annual

effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers,

individual industries, Federal, State, or local government agencies, or geographic regions; or (C)

significant adverse effects on competition, employment, investment, productivity, innovation, or on

the ability of United States-based enterprises to compete with foreign-based enterprises in domestic

and export markets. The term does not include any rule promulgated under the Telecommunications

Act of 1996 and the amendments made by that Act. 5 U.S.C. § 804(2).

12 5 U.S.C. § 801(a)(3), (a)(2)(A).

13 5 U.S.C. §§ 801(a)(1)(A), 802.

14 For a step-by-step discussion of these time periods and deadlines, see CRS Report R43992, The Congressional

Review Act (CRA): Frequently Asked Questions, by Maeve P. Carey and Christopher M. Davis (2021).

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•

if the motion to proceed is successful, the CRA disapproval resolution is subject

to up to 10 hours of debate, and then voted upon. No amendments are permitted

and the disapproval resolution requires a simple majority to pass.15

If both houses pass the joint resolution, it is sent to the President for signature or veto. If the

President vetoes the resolution, Congress can vote to override the veto under normal veto

override procedures.16

If a joint resolution of disapproval is introduced and acted upon within the CRA-specified

deadlines17 and signed by the President (or if Congress overrides the President’s veto), the CRA

states that the “rule shall not take effect (or continue).”18 In other words, if part or all of the rule

had already taken effect, the rule would be deemed not to have had any effect at any time—the

resolution has retroactive effect.19 If a rule is disapproved, the likely result is a return to the status

quo that was in place prior to the issuance of the rule.

In addition, when a joint resolution of disapproval is enacted, the CRA provides that a rule may

not be issued in “substantially the same form” as the disapproved rule unless it is specifically

authorized by a subsequent law. The CRA does not define what would constitute a rule that is

“substantially the same” as a nullified rule.20

Types of Agency Actions Covered by the CRA

The CRA governs “rules” promulgated by a “federal agency,” using the definition of “agency”

provided in the APA.21 That APA definition broadly defines an agency as “each authority of the

Government of the United States” but expressly excludes Congress and the courts, among other

entities.22 Accordingly, the CRA generally covers rules issued by most executive branch entities.23

Courts have held that the APA definition excludes actions of the President.24 GAO has determined

that because the CRA uses the APA definition of “agency,” it also does not apply to presidential

15 5 U.S.C. § 802(c), (d)(1), (d)(2).

16 See CRS Report RS22654, Veto Override Procedure in the House and Senate, by Elizabeth Rybicki (2019), for

details about these procedures.

17 See CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked Questions, by Maeve P. Carey

and Christopher M. Davis (2021), for a discussion of the timelines under which a resolution of disapproval must be

introduced and acted upon.

18 5 U.S.C. § 801(b).

19 5 U.S.C. § 801(f) provides that “any rule that takes effect and later is made of no force or effect by enactment of a

joint resolution under section 802 shall be treated as though such rule had never taken effect.”

20 For a discussion of how this “substantially the same” prohibition has been interpreted, see CRS Report R43992, The

Congressional Review Act (CRA): Frequently Asked Questions, by Maeve P. Carey and Christopher M. Davis (2021).

21 See 5 U.S.C. §§ 801(a)(1)(A), 804(1).

22 5 U.S.C. § 551(1). Thus, GAO has concluded that the CRA does not apply to actions of the U.S. Sentencing

Commission, an independent commission in the judicial branch. U.S. Sent’g Comm’n, B-335515, 2024 WL 1928504,

at *4 (Comp. Gen. May 1, 2024).

23 For further discussion of the definition of “agency,” see CRS In Focus IF12386, Defining Final Agency Action for

APA and CRA Review, by Valerie C. Brannon (2023).

24 See Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992) (holding that the President’s actions may not be

reviewed under the APA and declining to hold that the President is an “agency” within the APA’s definition). In the

context of litigation under the Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 205 (1967) (codified at 5

U.S.C. § 552), which also uses the definition of “agency” from 5 U.S.C. § 551(1), courts have clarified that the term

“agency” excludes any staff in the Executive Office of the President who do not exercise substantial authority

independent of the President, or whose sole function is to advise the President. E.g. Armstrong v. Exec. Office of the

President, 90 F.3d 553, 558 (D.C. Cir. 1996).

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actions.25 GAO has also concluded that certain agency actions implementing “presidential policymaking”26 or exercising presidential power27 are also not subject to the CRA. Because the CRA

applies only to actions taken by federal agencies, GAO has opined that the CRA does not

encompass actions taken by private entities such as Fannie Mae and Freddie Mac28 or a trade

agreement entered into by the U.S. government.29

An interpretive issue arising more frequently in GAO’s opinions is what types of federal agency

actions are considered “rules” under the CRA.30 As a preliminary matter, GAO has indicated the

CRA applies only to final agency actions: “proposed rules” and “interim step[s]” that “break[] no

new ground and leave[] the world as [they] found it” or require “additional steps” to be finalized

“are not rules for CRA purposes.”31

The CRA adopts a broad definition of the word “rule” from the APA but then creates three

exceptions to that definition.32 The APA definition of “rule” encompasses a wide range of agency

actions, including certain agency statements that are not subject to the notice-and-comment

rulemaking requirements outlined elsewhere in the APA:

“[R]ule” means the whole or a part of an agency statement of general or particular

applicability and future effect designed to implement, interpret, or prescribe law or policy

or describing the organization, procedure, or practice requirements of an agency and

includes the approval or prescription for the future of rates, wages, corporate or financial

structures or reorganizations thereof, prices, facilities, appliances, services or allowances

therefor or of valuations, costs, or accounting, or practices bearing on any of the

foregoing[.]33

The CRA narrows this definition by providing that the term “rule” does not include:

(A) any rule of particular applicability, including a rule that approves or prescribes for the

future rates, wages, prices, services, or allowances therefor, corporate or financial

structures, reorganizations, mergers, or acquisitions thereof, or accounting practices or

disclosures bearing on any of the foregoing;

25 U.S. GOV’T ACCOUNTABILITY OFF., B-278224, OPINION AS TO WHETHER THE AMERICAN HERITAGE RIVER INITIATIVE

IS A “RULE” UNDER THE SMALL BUSINESS REGULATORY ENFORCEMENT FAIRNESS ACT 3 (1997) (concluding that an

executive order “need not have been submitted to Congress” because the President is not an “agency” under the CRA).

26 Cong. Requestors, B-329206, 2018 WL 2016945, at *3 (Comp. Gen. May 1, 2018) (concluding that agency actions

implementing a presidential memorandum, which was issued under a statute broadly granting discretion to the

President, were not subject to the CRA).

27 Safer Fed. Workforce Task Force, B-333725, 2022 WL 843860, at *5 (Comp. Gen. Mar. 17, 2022) (concluding an

OMB action was not an “agency” action subject to the CRA because the agency was “acting explicitly under a

presidential delegation of the President’s discretionary authority” and therefore standing “in the President’s shoes”).

28 Fed. Hous. Fin. Agency, B-335424, 2024 WL 1016116, at *4 (Comp. Gen. Mar. 7, 2024). In this opinion, GAO

further concluded that the Federal Housing Finance Agency’s (FHFA) actions directing Fannie Mae and Freddie Mac

also were not subject to the CRA because FHFA was acting in its role as conservator, shedding its government

character and acting in a private capacity. Id. at *5. Accord Fed. Hous. Fin. Agency, B-336260, 2024 WL 4380633, at

*5 (Comp. Gen. Oct. 1, 2024).

29 Off. of the U.S. Trade Rep., B-335714, 2024 WL 2700013, at *3 (Comp. Gen. May 23, 2024).

30 See 5 U.S.C. § 804(3).

31 Cong. Requesters, B-325553, 2014 WL 2211715, at *1 (Comp. Gen. May 29, 2014); accord, e.g., Hon. Edward

Markey, B-330190, 2018 WL 6632991, at *1 (Comp. Gen. Dec. 19, 2018) (declining to consider a memorandum that

contained “only a proposal with recommendations”); Natl. Inst. of Standards and Tech., Dep’t of Com., B-336146,

2024 WL 2746950, at *3 (Comp. Gen. May 28, 2024). The APA similarly only allows judicial review of “final” agency

action. E.g., Bennett v. Spear, 520 U.S. 154, 177–78 (1997).

32 See 5 U.S.C. § 804(3) (“The term ‘rule’ has the meaning given such term in section 551 . . . .”).

33 Id. § 551(4).

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(B) any rule relating to agency management or personnel; or

(C) any rule of agency organization, procedure, or practice that does not substantially affect

the rights or obligations of non-agency parties.34

Determining whether any particular agency action is a rule subject to the CRA therefore entails a

two-part inquiry: first, asking whether the action qualifies as a rule under the APA definition and,

second, asking whether the action falls within any of the exceptions to that definition provided in

the CRA. These two steps are illustrated below in Figure 1.

Figure 1. Determining Whether an Agency Action Is a “Rule” Under the CRA:

Two-Part Inquiry

Source: Congressional Research Service.

The two elements of this inquiry are heavily fact specific and require looking beyond a

document’s label to the substance of the agency’s action.35

While the CRA draws from the broad APA definition of “rule,” it does not draw from the

provisions in the APA that outline so-called notice-and-comment rulemaking procedures. The

APA outlines specific rulemaking procedures that agencies must follow when they formulate,

amend, or repeal a rule.36 The APA generally requires agencies to notify the public of a proposed

rule and then provide a meaningful opportunity for public comment on that rule.37 However, not

all agency acts that qualify as “rules” under the APA definition are required to comply with the

APA’s rulemaking procedures.38 In particular, the APA provides that notice-and-comment is not

required for “interpretative rules” and “general statements of policy.”39

34 Id. § 804(3).

35 Cf., e.g., Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407, 416 (1942).

36 See 5 U.S.C. § 553.

37 See CRS Report R41546, A Brief Overview of Rulemaking and Judicial Review, by Todd Garvey (2017).

38 See 5 U.S.C. § 553(a), (b)(A).

39 Id. § 553(b)(A). See also, e.g., Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045–48 (D.C. Cir. 1987) (outlining three

types of agency rules that are exempt from 5 U.S.C. § 553’s notice-and-comment requirements). The APA also

exempts rules if they involve “a military or foreign affairs function of the United States” or relate to “public property,

loans, grants, benefits, or contracts.” 5 U.S.C. § 553(a). There is also a “good cause” exception to the notice-andcomment requirements. Id. § 553(b)(B). For a more detailed overview of the good cause exception to notice-andcomment procedures, see CRS Report R44356, The Good Cause Exception to Notice and Comment Rulemaking:

Judicial Review of Agency Action, by Jared P. Cole (2016).

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Courts frequently hold that agencies’ guidance documents are exempt from APA notice-andcomment rulemaking requirements because those documents are properly classified either as

interpretive rules or as general policy statements.40 Interpretive rules merely explain or clarify

preexisting legal obligations without themselves “purport[ing] to impose new obligations or

prohibitions,”41 while general policy statements simply describe how an agency “will exercise its

broad enforcement discretion”42 without binding the agency.43 The critical distinction between

interpretive rules and general policy statements on the one hand and rules subject to notice-andcomment requirements on the other is that the latter “bind[] private parties or the agency itself

with the ‘force of law’”44 and have “legal effect.”45

In contrast, the CRA does not exempt interpretive rules or general policy statements. Instead, as

discussed below, it has been interpreted to apply to agency guidance documents so long as they

otherwise meet the definition of “rule” and do not fall under one of the three exemptions. Postenactment legislative history46 of the CRA supports this interpretation. Following the enactment

of the CRA in 1996, the law’s sponsors inserted into the Congressional Record a statement47 in

which they asserted that the law would cover a wide swath of agency actions:

The committees intend this chapter to be interpreted broadly with regard to the type and

scope of rules that are subject to congressional review. The term “rule” in subsection 804(3)

begins with the definition of a “rule” in subsection 551(4) and excludes three subsets of

rules that are modeled on APA sections 551 and 553. This definition of a rule does not turn

on whether a given agency must normally comply with the notice-and-comment provisions

of the APA . . . . The definition of “rule” in subsection 551(4) covers a wide spectrum of

activities.48

This statement suggests that Congress intended the CRA to reach a broad range of agency

activities, including some agency policy statements and interpretive rules, despite the fact that

those actions are not subject to the APA’s requirements for notice-and-comment.49

40 See, e.g., Ass’n of Flight Attendants-CWA v. Huerta, 785 F.3d 710, 717 (D.C. Cir. 2015); see generally, e.g., CRS

Legal Sidebar LSB10591, Agency Use of Guidance Documents, by Kate R. Bowers (2021); CRS Report R44468,

General Policy Statements: Legal Overview, by Jared P. Cole and Todd Garvey (2016). While the APA refers to

“interpretative” rules, 5 U.S.C. § 553(b)(A), many courts and commentators now use the simpler term “interpretive.”

41 Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 252 (D.C. Cir. 2014). See also, e.g., Am. Hosp. Ass’n, 834 F.2d at

1045.

42

Nat’l Mining Ass’n, 758 F.3d at 252.

43 Am. Hosp. Ass’n, 834 F.2d at 1046.

44 Gen. Elec. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002) (quoting Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir.

1999)).

45 Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993).

46 Courts have sometimes questioned the validity of post-enactment legislative history as an interpretive tool. E.g.,

Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011) (“Post-enactment legislative history (a contradiction in terms) is

not a legitimate tool of statutory interpretation.”).

47 In the statement, the sponsors observed that “no formal legislative history was prepared to explain [the CRA]” and

that the statement was “intended to cure this deficiency.” 142 CONG. REC. 8197 (joint statement of Sens. Nickles, Reid,

& Stevens). The same statement was submitted in the House. 142 CONG. REC. 6926 (statement of Rep. Hyde).

48 142 CONG. REC. 6929 (statement of Rep. Hyde).

49 See also 142 CONG. REC. 6907 (statement of Rep. McIntosh) (“Although agency interpretive rules, general

statements of policy, guideline documents, and agency policy and procedure manuals may not be subject to the notice

and comment provisions of section 553(c) of title 5, United States Code, these types of documents are covered under

the [CRA].”).

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Determining Whether an Agency Action Is an APA Rule or Other

Agency Action

The CRA defines the word “rule” by incorporating the APA’s definition of that term.50 There is

very little case law interpreting the meaning of “rule” under the CRA, due in part to the fact that

the statute bars judicial review of any “determination, finding, action, or omission under” the

CRA.51 Cases interpreting the APA’s definition of “rule” may provide persuasive authority for

interpreting the CRA because the CRA explicitly relies on that provision as the basis for its own

definition.52

Identifying “Rules” Under the APA

An agency statement qualifies as a “rule” under the APA definition if it (1) is “of general or

particular applicability,” (2) has “future effect,” and (3) is “designed to implement, interpret, or

prescribe law or policy.”53

With regard to the first requirement, as the U.S. Court of Appeals for the District of Columbia

Circuit (D.C. Circuit) has observed, most agency statements will be “of general or particular

applicability” and will fulfill this condition.54 Regarding the “future effect” element, GAO’s

interpretations have focused on whether an agency statement operates prospectively: “whether it

is concerned with policy considerations for the future and not with the evaluation of past

conduct.”55 Courts in the APA context have said orders are retrospective, while rules have “future

effect.”56

The third requirement for an agency action to be considered an APA rule is that it must be

“designed to implement, interpret, or prescribe law or policy.”57 The D.C. Circuit has held that

agency documents that merely state an “established interpretation” and “tread no new ground” do

50 5 U.S.C. § 804(3).

51 Id. § 805. Most courts to consider the scope of this provision have concluded it bars adjudication of questions such as

whether an agency should have submitted an action under the CRA. See, e.g., Montanans for Multiple Use v.

Barbouletos, 568 F.3d 225, 229 (D.C. Cir. 2009); Via Christi Reg’l Med. Ctr. v. Leavitt, 509 F.3d 1259, 1271 n.11

(10th Cir. 2007), abrogated by Azar v. Allina Health Services, 587 U.S. 566 (2019); but see Tugaw Ranches v. U.S.

Dep’t of the Interior, 362 F. Supp. 3d 879, 889 (D. Idaho 2019) (holding 5 U.S.C. § 805 “does not clearly prohibit

judicial review of agency action under the CRA”); United States v. S. Indiana Gas and Elec. Co., No. IP99-1692CMS,

2002 WL 31427523, at *5–7 (S.D. Ind. Oct. 24, 2002) (holding 5 U.S.C. § 805 precludes review of Congress’s

determinations but not of agencies’ determinations, and proceeding to review whether agency rule should have been

reported under the CRA).

52 See, e.g., Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 86 (2006) (“[W]hen ‘judicial

interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new

statute indicates, as a general matter, the intent to incorporate its . . . judicial interpretations as well.’” (quoting Bragdon

v. Abbott, 524 U.S. 624, 645 (1998))).

53 5 U.S.C. § 551(4).

54 See Indep. Equip. Dealers Ass’n v. EPA, 372 F.3d 420, 428 (D.C. Cir. 2004) (“[T]he [Environmental Protection

Agency] Letter is certainly a statement of ‘general or particular applicability’—what isn’t?”). The CRA, however,

exempts rules of particular applicability and accordingly applies only to rules of general applicability. See infra “Rules

of Particular Applicability.”

55 E.g., Hon. Orrin Hatch, B-323772, 2012 WL 3801373, at *3 (Comp. Gen. Sept. 4, 2012).

56 See, e.g., Goodman v. FCC, 182 F.3d 987, 994 (D.C. Cir. 1999) (quoting 5 U.S.C. § 551(4)). Cf. Neustar Inc. v.

FCC, 857 F.3d 886, 895 (D.C. Cir. 2017) (“[A]lthough adjudication is by its nature retroactive, it may be proper to

enter an adjudicatory order without retroactive effect.”). As the next section discusses in more detail, the first two

requirements are relevant to distinguish rules, which are required to be submitted to Congress, from orders, which are

not. See, e.g., Fed. Commc’ns Comm’n, B-332233, 2020 WL 4901732, at *4 (Comp. Gen. Aug. 13, 2020).

57 See 5 U.S.C. § 551(4).

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not “implement, interpret, or prescribe law or policy” and therefore are not rules.58 Similarly, an

agency statement is not a rule if it “does not change any law or official policy presently in

effect.”59 Thus, courts have concluded that “educational”60 documents that “reprint[]”61 or

“restate”62 existing law are not rules under the APA. The D.C. Circuit has also held that an

agency’s budget request is not a rule.63

In interpreting this provision for purposes of the CRA, GAO has made a similar distinction,

concluding that agency statements that merely restate or inform the public about a previously

adopted policy are not rules.64 Accordingly, GAO has said that certain agency actions required as

part of a statutory process did not implement law because they merely memorialized a prior

decision.65 For instance, GAO explained that an agency notice creating a new system of records,

issued “in response to a previously made policy decision,” did not qualify as a rule.66 In GAO’s

view, the notice “did not change existing policy but simply left the world as it found it, and,

accordingly, does not implement, interpret, or prescribe law or policy nor does it describe the

organization, procedure, or practice requirements of an agency.”67 In contrast, GAO has said

statements that present new recommendations,68 “provide[] extra information” to explain how

regulated entities can comply with a statute, or “express[] a policy preference” as to how entities

should approach compliance, do implement law rather than merely restate it.69

58 See Indep. Equip. Dealers Ass’n v. EPA, 372 F.3d 420, 428 (D.C. Cir. 2004) (considering an EPA letter, responding

to an inquiry from a trade association, that stated the EPA’s view of the proper interpretation of the governing statute

and regulation).

59 Indus. Safety Equip. Ass’n v. EPA, 837 F.2d 1115, 1120 (D.C. Cir. 1988); see id. (noting that although an agency

guide gave safety advice and recommendations that went beyond minimum legal requirements, these sections were

only advisory and the EPA was careful to “underscore[] the distinction between the present legal requirements” and

this advice).

60 Am. Trucking Ass’n v. United States, 755 F.2d 1292, 1296 (7th Cir. 1985) (holding an agency report was not a rule

where it was merely “an educational undertaking” that did not fix, and was not “intended to fix, any legal rights”).

61 Golden & Zimmerman, LLC v. Domenech, 599 F.3d 426, 431 (4th Cir. 2010) (“In reprinting the relevant statutes,

regulations, and rulings, the Reference Guide undoubtedly did not ‘implement, interpret, or prescribe law.’” (quoting 5

U.S.C. § 551(4))).

62 Id. at 431–32 (“The Reference Guide also contains frequently asked questions and answers . . . . The questions and

answers were not themselves designed to be enforceable rules, but rather to be a mechanism for explaining the laws,

regulations, and rulings. They do not impose new legal requirements, having been reiterated over 13 times during the

course of over 40 years. Rather, they attempt to restate or report what already exists in the relevant body of statutes,

regulations, and rulings.”).

63 Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 20 (D.C. Cir. 2006) (“The agency’s proposal to

Congress, developed to secure the [appropriated] funds, may serve as a useful planning document, but it is not a

‘rule’. . . . The most that can be said is that it outlines the goals and methods of an administrative program.” (quoting 5

U.S.C. § 551(4))).

64 E.g., U.S. Dep’t of Health and Hum. Serv., Ctr for Disease Control and Prevention, B-335316, 2023 WL 8278750, at

*5 (Comp. Gen. Nov. 29, 2023); accord, e.g., Off. of Personnel Mgt., B-334237, 2023 WL 2836787, at *3 n.3 (Comp.

Gen. Apr. 6, 2023); Off. of the U.S. Trade Rep., B-335714, 2024 WL 2700013, at *4 (Comp. Gen. May 23, 2024).

65 E.g., Hon. Brian Schatz, B-330288, 2019 WL 479525, at *3 (Comp. Gen. Feb. 7, 2019).

66 Ct. Serv. and Offender Supervision Agency, Pretrial Serv. Agency, B-334005, 2023 WL 316010, at *5 (Comp. Gen.

Jan. 18, 2023).

67 Id.

68 U.S. Dep’t of the Int., Bureau of Ocean Energy Mgt., B-335629, 2024 WL 3338928, at *5 (Comp. Gen. July 8,

2024).

69 Fed. Hwy. Admin., B-334032, 2022 WL 17744101, *4 (Comp. Gen. Dec. 15, 2022); see also Dep’t of Hous. and

Urb. Dev., B-331171, 2020 WL 7629655, at *4 (Comp. Gen. Dec. 17, 2020); Off. of Personnel Mgt., B-334237, 2023

WL 2836787, *3 n.3 (Comp. Gen. Apr. 6, 2023). In evaluating the effects of a statement on third parties, this inquiry

(continued...)

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Some court opinions interpreting the APA have found that nonbinding agency actions cannot

qualify as agency rules. For example, some D.C. Circuit opinions convey that the APA’s “future

effect” requirement excludes any agency statements that do not “bind the agency,”70 and others

conclude that general policy statements cannot qualify as “final” actions because they are not

legally binding.71 These cases, however, are arguably inconsistent with the structure of the APA,

which suggests that the APA term “rule” includes both binding and nonbinding actions. In

particular, as discussed above, some—but not all—APA “rules” must go through procedures

commonly known as notice-and-comment rulemaking.72 To determine which rules are subject to

notice-and-comment requirements, courts have distinguished substantive rules (sometimes also

called “legislative” rules) from non-substantive rules.73 Substantive rules have “the force of law,”

meaning they are legally binding, and are subject to the APA’s notice-and-comment procedures.74

Non-substantive rules, by definition, are not legally binding—but have still been described by

courts as rules.75 Congress would not have needed to expressly exclude nonbinding interpretive

rules and policy statements from the APA’s notice-and-comment procedures unless they otherwise

qualified as “rules” subject to those requirements.76

Regardless of these APA opinions, GAO has clearly stated that nonbinding agency actions can be

subject to the CRA as final rules.77 GAO has concluded the CRA “covers general statements of

policy” and other nonbinding guidance documents, pointing to the fact that the CRA uses the

definition of “rule” in 5 U.S.C. § 551—which is broader than the subclass of rules subject to

notice-and-comment procedures—as well as the CRA’s post-enactment legislative history.78

Differentiating “Rules” from “Orders” Under the APA

The APA provides a general framework governing most agency actions—not only agency

rulemaking,79 but also administrative adjudications.80 The APA accordingly distinguishes between

can have some conceptual overlap with the CRA’s third exception. See infra note 189; see also, e.g., U.S. Dep’t of the

Int., Bureau of Ocean Energy Mgt., B-335629, 2024 WL 3338928, at *6 (Comp. Gen. July 8, 2024) (concluding an

agency action implements law or policy because it “outlines agency preferences concerning the behavior of current or

potential beneficiaries of federal actions”).

70 Indep. Petroleum Ass’n of Am. v. Babbitt, 92 F.3d 1248, 1256 (D.C. Cir. 1996); accord Amoco Prod. Co. v. Watson,

410 F.3d 722, 732 (D.C. Cir. 2005). However, in other cases, the D.C. Circuit and other courts have made no mention

of the idea that to have future effect, an agency statement must be binding. E.g., Indep. Equip. Dealers Ass’n v. EPA,

372 F.3d 420, 428 (D.C. Cir. 2004). Cf. Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) (discussing the

“distinction between a substantive rule—really any rule—and a general statement of policy”).

71 E.g., Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 252–53 (D.C. Cir. 2014); but see, e.g., Appalachian Power Co.

v. EPA, 208 F.3d 1015, 1021–22 (D.C. Cir. 2000) (concluding guidance documents can have a binding effect “in a

practical sense” and can thus qualify as final action). For more information on the APA’s requirement for agency

actions to be final before courts may review them, see CRS In Focus IF12386, Defining Final Agency Action for APA

and CRA Review, by Valerie C. Brannon (2023).

72 See 5 U.S.C. § 553.

73 E.g., Chrysler Corp. v. Brown, 441 U.S. 281, 301–02 (1979). This distinction is grounded in 5 U.S.C. § 553(b)’s

exclusions for general policy statements and interpretive rules.

74 E.g., Nat’l Mining Ass’n, 758 F.3d at 251–52; Batterton v. Marshall, 648 F.2d 694, 701 (D.C. Cir. 1980).

75 E.g., Walmart Inc. v. U.S. Dep’t of Justice, 21 F.4th 200, 308 (5th Cir. 2021); Appalachian Power Co., 208 F.3d at

1021–22; Nat’l Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689, 698 (D.C. Cir. 1971).

76 See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001) (noting that courts should avoid treating statutory terms as

surplusage and, if possible, should give effect to every statutory word).

77 E.g., U.S. Dep’t of Transp., B-335488, 2023 WL 6891971, at *7 (Comp. Gen. Oct. 18, 2023).

78

E.g., Hon. Pat Toomey, B-329272, 2017 WL 4684778, at *3 (Comp. Gen. Oct. 19, 2017).

79 See 5 U.S.C. § 553.

80 See id. §§ 554, 556–58.

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different types of agency actions, separating rules from orders and investigatory acts.81 These

distinctions are also relevant when deciding whether an agency action is a rule subject to the

CRA.

Primarily, the APA distinguishes a “rule” from an “order,” defining an “order” as “the whole or a

part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an

agency in a matter other than rule making but including licensing.”82 Orders are the product of

agency adjudication, in contrast to rules, which result from rulemaking.83 To determine whether

an agency action is a rule or an order under the APA, courts look beyond the document’s label to

the substance of the action.84 One federal court of appeals described the distinction between

rulemaking and adjudication as follows:

First, adjudications resolve disputes among specific individuals in specific cases, whereas

rulemaking affects the rights of broad classes of unspecified individuals. . . . Second,

because adjudications involve concrete disputes, they have an immediate effect on specific

individuals (those involved in the dispute). Rulemaking, in contrast, is prospective, and has

a definitive effect on individuals only after the rule subsequently is applied.85

Thus, rules operate generally and prospectively: they are intended to “inform the future conduct”

of an open-ended class of people who might be subject to the rules when they are applied in

future agency enforcement actions.86 Adjudications, in contrast, look backwards to the conduct of

specific parties and apply to those entities immediately.87 Orders issued in adjudications may

announce policies that have “some tangential impact on other entities” without being transformed

into a rulemaking.88 The difference is whether the decision must “be obeyed by the affected

public” or merely the parties to the order.89

GAO has followed this APA distinction to conclude that agency orders, including licensing

actions, are not subject to the CRA.90 A decision to apply existing legal standards to a particular

set of facts qualifies as an order.91 To determine whether an agency action is a rule or an order,

GAO has looked to the factors outlined above, including whether the action applied to a particular

entity rather than “a broad unspecified group,” whether the agency process “involved

81 See id. §§ 551, 555.

82 Id. § 551(6).

83 See id. § 551(4)–(7).

84 E.g., Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407, 416 (1942) (“The particular label placed upon [the

action] by the [Federal Communications] Commission is not necessarily conclusive, for it is the substance of what the

Commission has purported to do and has done which is decisive.”); id. at 417 (holding document labeled “order” was

in fact a rule under the relevant statute). But cf. Am. Airlines, Inc. v. Dep’t of Transp., 202 F.3d 788, 797 (5th Cir.

2000) (“We . . . accord significant deference to an agency’s characterization of its own action.”).

85 Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994). Agency adjudications do not necessarily

involve “disputes among . . . individuals.” Id. Agency adjudications may include, for example, licensing and permitting

actions. 5 U.S.C. § 551(6)–(8).

86 Indep. Equip. Dealers Ass’n v. EPA, 372 F.3d 420, 428 (D.C. Cir. 2004); accord, e.g., Safari Club Int’l v. Zinke, 878

F.3d 316, 332 (D.C. Cir. 2017). As discussed elsewhere, the APA definition of “rule” also includes rules of particular

applicability, which may apply to a specifically identified person or class; however, the CRA excludes such rules. See

infra “Rules of Particular Applicability.”

87 See, e.g., Neustar Inc. v. FCC, 857 F.3d 886, 895–96 (D.C. Cir. 2017).

88 Id. at 895.

89 NLRB v. Wyman-Gordon Co., 394 U.S. 759, 765–66 (1969).

90 E.g., Fed. Commc’ns Comm’n, B-332233, 2020 WL 4901732, at *2 (Comp. Gen. Aug. 13, 2020); U.S. Dep’t of the

Int., B-335781, 2024 WL 837489, at *3 (Comp. Gen. Feb. 27, 2024); Fed. Energy Reg. Comm’n, B-335030, 2024 WL

2077418, at *3 (Comp. Gen. May 8, 2024).

91 Fed. Hous. Fin. Agency, B-336260, 2024 WL 4380633, at *6 (Comp. Gen. Oct. 1, 2024).

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consideration of particular facts, as opposed to general policy,” and whether the action “has

immediate effect.”92 The presence of only one of these factors, or the use of procedures associated

more with rulemaking or adjudication, may not always be dispositive.93 For example, GAO

opined that an Environmental Protection Agency (EPA) action denying 69 petitions for

exemptions from a statutory requirement qualified as an order even though EPA had employed

public notice-and-comment procedures.94 In another opinion, GAO indicated that although an

Education Department action waived certain statutory requirements, it was a rule rather than an

order because it applied “across the board,” creating new benefits and requirements “for all loan

holders” rather than addressing requests from specific entities.95 Thus, the inquiry into whether an

action is an order or rule has often focused on whether the action has a particularized

application.96 This characteristic creates overlap with the CRA exception for rules of particular

applicability,97 discussed below.98

In addition to the distinction between rules and orders, some courts have also differentiated rules

from agency investigations.99 A separate provision of the APA addresses an agency’s authority to

compel the submission of information and perform “investigative act[s] or demand[s].”100 When

agencies conduct investigative actions such as requiring regulated parties to submit informational

reports, courts have sometimes held that they are not subject to the APA’s rulemaking

requirements,101 particularly when an action is “preliminary to the regulatory process” and thus

has no immediate effect on the public.102 While the investigative acts themselves may not be

rules, courts have observed that some general statements related to investigations may qualify as

92 Env’t Prot. Agency, B-334309, 2023 WL 8353888, at *5–6 (Comp. Gen. Nov. 30, 2023).

93 Some GAO opinions, however, have seemed to focus on the agency process used to adopt the action. See, e.g., Ctr

for Disease Control and Prevention, B-333501, 2021 WL 5986759, at *4 (Comp. Gen. Dec. 14, 2021) (concluding an

action is not an order because it resulted from “a process used to draft rules, not an adjudicatory proceeding”); cf. U.S.

Food and Drug Admin., B-334995, 2023 WL 4365327, at *4–5 (Comp. Gen. July 6, 2023) (discussing the agency’s

process, but also noting that the action involved a review of applications from specific companies and had an

immediate effect).

94 Env’t Prot. Agency, B-334400, 2023 WL 1927814, at *6 (Comp. Gen. Feb. 9, 2023). In contrast, GAO determined

an agency letter addressed to eight specific companies was not a rule of particular applicability—although it addressed

“specified entities,” it did “not address individualized actions” those companies were allowed to take based on their

“individual circumstances.” Cong. Requesters, B-330843, 2019 WL 5448291, at *8 (Comp. Gen. Oct. 22, 2019).

95 U.S. Dep’t of Educ., B-334644, 2023 WL 2599665, at *7 (Comp. Gen. Mar. 17, 2023).

96 E.g., Hon. James A. Leach, B-286338, 2000 WL 1568268, at *3 (Comp. Gen. Oct. 17, 2000) (concluding an agency

action was a rule rather than an order because, although it related to the issuance of national charters for financial

institutions, the agency statement was generally applicable and “unrelated to any particular institution’s application for

a charter”).

97 For instance, a number of GAO opinions have concluded that in the alternative, if an agency action is not an order, it

could be considered a rule of particular applicability. E.g., Fed. Commc’ns Comm’n, B-332233, 2020 WL 4901732, at

*5 n.3 (Comp. Gen. Aug. 13, 2020); U.S. Food and Drug Admin., B-334995, 2023 WL 4365327, at *5–6 (Comp. Gen.

July 6, 2023).

98 See infra “Rules of Particular Applicability.”

99 See, e.g., In re FTC Line of Bus. Report Litig., 595 F.2d 685, 695 (D.C. Cir. 1978) (per curiam) (“The language and

legislative history of the APA suggest a classification of agency activity into three basic categories: rulemaking,

adjudication and investigation.”).

100 5 U.S.C. § 555.

101 See In re FTC Line of Bus. Report Litig., 595 F.2d at 696; United States v. W.H. Hodges & Co., 533 F.2d 276, 278

(5th Cir. 1976) (per curiam).

102 Env’t Def. Fund, Inc. v. Costle, 636 F.2d 1229, 1255 (D.C. Cir. 1980). Accordingly, at least some agency

investigations may not be considered final agency action, regardless of whether they qualify as a rule. Fund for

Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 19–20 (D.C. Cir. 2006); see generally CRS In Focus

IF12386, Defining Final Agency Action for APA and CRA Review, by Valerie C. Brannon (2023).

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rules.103 For instance, in one case, a federal court of appeals indicated that the procedures

governing an agency’s decision to investigate “are separate from and precede the agency’s

ultimate [investigative] act,” concluding that the procedures at issue constituted a rule.104

Identifying CRA Exceptions

Even if an agency action is a “rule” within the APA definition, it will not be subject to the CRA if

it falls within one of the three exceptions to the CRA’s definition of a “rule.”105 The CRA exempts

from the definition rules “of particular applicability,” rules “relating to agency management or

personnel,” and “any rule of agency organization, procedure, or practice that does not

substantially affect the rights or obligations of non-agency parties.”106 Additionally, the CRA does

not “apply to rules that concern monetary policy proposed or implemented by the Board of

Governors of the Federal Reserve System or the Federal Open Market Committee.”107

The CRA also contains a partial exception for rules where an agency has, “for good cause,”

dispensed with notice-and-comment rulemaking procedures, as well as for rules related to “a

regulatory program for a commercial, recreational, or subsistence activity related to hunting,

fishing, or camping.”108 This section does not exempt rules from the CRA procedures entirely; it

merely allows the agency to determine when the rule shall take effect notwithstanding the CRA’s

requirements.109

As previously discussed, the APA provides that notice-and-comment procedures are not required

for “interpretative rules, general statements of policy, or rules of agency organization, procedure,

or practice.”110 Additionally, the APA’s rulemaking procedures do not, in relevant part, apply to

“matter[s] relating to agency management or personnel.”111 To the extent that the CRA’s

exceptions track language in the APA, cases interpreting those APA provisions may be useful to

interpret the CRA exceptions.112 The CRA does not contain an exclusion for either general policy

statements or interpretive rules,113 and as such, GAO has concluded these types of agency

statements may be subject to the CRA.114

103 See U.S. Dep’t of Labor v. Kast Metals Corp., 744 F.2d 1145, 1150 (5th Cir. 1984) (“To state that a line exists

between investigative activity that anticipates the promulgation of a rule (or the initiation of enforcement proceedings)

and the rule itself demarcates only a vague result—it does not illumine the content of the distinction.”).

104 Id. at 1151–52.

105 See 5 U.S.C. § 804(3)(A)–(C).

106 Id. § 804(3).

107 Id. § 807.

108 See id. § 808(2). The CRA’s “good cause” exclusion mirrors the text of 5 U.S.C. § 553(b)(B). See supra note 39.

109 See 5 U.S.C. §§ 801, 808.

110 Id. § 553(b)(A).

111 Id. § 553(a)(2). The APA also exempts rules if they involve “a military or foreign affairs function of the United

States” or relate to “public property, loans, grants, benefits, or contracts.” Id. § 553(a).

112 See, e.g., Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 86 (2006) (“[W]hen ‘judicial

interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new

statute indicates, as a general matter, the intent to incorporate its . . . judicial interpretations as well.’” (quoting Bragdon

v. Abbott, 524 U.S. 624, 645 (1998)) (second alteration in original)).

113 See 5 U.S.C. § 804(3)(A)–(C).

114 E.g., Hon. Orrin Hatch, B-323772, 2012 WL 3801373, *2–3 (Comp. Gen. Sept. 4, 2012).

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Rules of Particular Applicability

While the APA’s definition of “rule” includes agency statements “of general or particular

applicability,”115 the CRA expressly exempts “any rule of particular applicability.”116 Courts have

said that this language refers to “legislative-type promulgations” that are “directed to” specifically

named parties.117 The CRA’s text gives examples of some types of rules of particular applicability

by specifying that this exemption includes any “rule that approves or prescribes for the future

rates, wages, prices, services, or allowances therefor, corporate or financial structures,

reorganizations, mergers, or acquisitions thereof, or accounting practices or disclosures bearing

on any of the foregoing.”118 Moreover, the post-enactment statement for the record written by the

CRA’s sponsors maintained that “[Internal Revenue Service (IRS)] private letter rulings and

Customs Service letter rulings are classic examples of rules of particular applicability.”119 Under

the APA, courts have also held, for example, that agency actions designating specific sites as

covered by environmental laws are rules of “particular applicability.”120

In GAO opinions analyzing whether various agency actions fall within the particular applicability

exception, GAO has stated that to be generally applicable, the CRA does not require a rule to

“generally apply to the population as a whole.”121 Instead, “all that is required is a finding” that a

rule “has general applicability within its intended range, regardless of the magnitude of that

range.”122 For example, in one case, GAO concluded that an agency decision adopting and

implementing a plan to counter decreased river flows in a certain river basin was not a matter of

particular applicability.123 In GAO’s view, although the decision applied to a specific geographic

area, it would nonetheless “have significant economic and environmental impact throughout

several major watersheds in the nation’s largest state.”124

As mentioned above,125 GAO has recognized an overlap between rules of particular applicability

and orders, due to the fact that both focus on an agency action’s particularized application to

115 5 U.S.C. § 551(4) (emphasis added).

116 Id. § 804(3)(A).

117 See U.S. Steel Corp. v. EPA, 605 F.2d 283, 285 n.3 (7th Cir. 1979) (discussing APA’s legislative history). See also

PBW Stock Exchange, Inc. v. SEC, 485 F.2d 718, 732 (3d Cir. 1973) (observing that because APA includes statements

of particular applicability, it covers rules that “may be directly applicable to specific individuals or situations”).

118 5 U.S.C. § 804(3)(A). Cf. ABC v. FCC, 682 F.2d 25, 31 (2d Cir. 1982) (“The legislative history of the APA

confirms that decisions in agency ratemaking proceedings such as the establishment of a utility’s allowable rate of

return are rules of particular applicability . . . .”).

119 142 CONG. REC. 6930 (statement of Rep. Hyde). The post-enactment legislative history of the CRA provided other

examples, as well: “Examples include import and export licenses, individual rate and tariff approvals, wetlands permits,

grazing permits, plant licenses or permits, drug and medical device approvals, new source review permits, hunting and

fishing take limits, incidental take permits and habitat conservation plans, broadcast licenses, and product approvals,

including approvals that set forth the conditions under which a product may be distributed.” Id.

120 See, e.g., Nat’l Wildlife Fed’n v. Costle, 629 F.2d 118, 126 n.27 (D.C. Cir. 1980) (holding that statement

designating dredged material dumping site constitutes a rule of particular applicability for purposes of the APA). This

holding may stand in some contrast to certain GAO opinions; see infra note 124 and accompanying text.

121 Hon. Doug Ose, B-287557, 2001 WL 522025, at *6 (Comp. Gen. May 14, 2001).

122 Id.

123 Id. at *6–7.

124 Id. at *7. Accord, e.g., Hon. Lisa Murkowski, B-238859, 2017 WL 4772605, at *5 (Comp. Gen. Oct. 23, 2017)

(“The 2016 Tongass Amendment is not an approval, license, or registration to a particular person or entity. Nor does it

grant or recognize an exemption or relieve a restriction for a particular person or entity. While the plan does only apply

to the Tongass National Forest and not to other national forests, it applies to . . . all persons or entities using the

forest—not just a particular person or entity.”).

125 See supra “Differentiating “Rules” from “Orders” Under the APA.”

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identified parties.126 One example comes from an opinion considering an agency action that

approved a modification to an existing drug approval.127 GAO said that as a licensing action, the

modification qualified as an order, but GAO also observed that the CRA’s post-enactment

legislative history specifically identified “drug and medical device approvals” as examples of

rules of particular applicability.128 More generally, GAO said that although this particular action

did not specifically name the companies who were the sponsors of the drugs, it still addressed

only the “sponsors,” who were “specific and easily identifiable parties.”129 Further, the

modification was made “based on the specific facts and circumstances” of that drug.130

Accordingly, the action qualified as a rule of particular applicability.131

In at least one opinion, GAO concluded that although an agency action appeared to qualify as a

statutory example of a rule of particular applicability, that fact was not dispositive.132 Specifically,

GAO said that although an agency memorandum “prescribe[d] a special pay rate schedule,”

which appeared to make it a “rule that … prescribes for the future rates [or] wages” under the

CRA,133 the statement was not a rule of particular applicability.134 GAO reasoned that the action

did not apply to a specific person or entity but instead applied “to all employees whose pay rate

would otherwise be below the special rate.”135

Specifically identifying covered parties, however, may not always be sufficient to qualify for this

exception. GAO concluded in one opinion that although an agency letter only applied to eight

specifically named companies, it was not a rule of particular applicability because it did “not

address individualized actions that an identified entity may or may not take based on the

individual circumstances of each . . . company.”136 Rather than addressing whether the companies

could, for example, engage in a specific transaction, the letters covered a general topic and

discussed “a variety of actions the eight bank holding companies should consider or take.”137

Rules Relating to Agency Management or Personnel

The second CRA exemption excludes from the CRA’s coverage “any rule relating to agency

management or personnel.”138 GAO has concluded this exception includes rules establishing a

126 E.g., Env’t Prot. Agency, B-334400, 2023 WL 1927814, at *7 (Comp. Gen. Feb. 9, 2023) (concluding first that an

agency action is an order, but additionally saying that even if it did qualify as a rule, “it still would not be subject to

CRA because of the exception for rules of particular applicability”).

127 U.S. Food and Drug Admin., B-334995, 2023 WL 4365327, at *1 (Comp. Gen. July 6, 2023).

128 Id. at *5–6.

129 Id. at *5.

130 Id.

131 Id.

132 Off. of Personnel Mgt., B-334221, 2023 WL 1927816, at *4 (Comp. Gen. Feb. 9, 2023).

133 5 U.S.C. § 804(3)(A).

134 Off. of Personnel Mgt., B-334221, 2023 WL 1927816, at *4 (Comp. Gen. Feb. 9, 2023).

135 Id.

136 Cong. Requesters, B-330843, 2019 WL 5448291, at *8 (Comp. Gen. Oct. 22, 2019).

137 Id. This opinion may stand in contrast to the drug approval opinion mentioned above: there, the agency had

modified a strategy that (as described by GAO) “may require a variety of materials and actions.” U.S. Food and Drug

Admin., B-334995, 2023 WL 4365327, at *2 (Comp. Gen. July 6, 2023). In distinguishing the letter to the bank

holding companies, B-334995 said the drug modification addressed “actions the drug sponsors may take based on the

specific facts and circumstances pertaining to” that drug, and unlike the letter to the eight bank holding companies, did

not leave it to the companies to decide on the specific actions necessary. Id. at *5.

138 5 U.S.C. § 804(3)(B).

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special pay rate,139 establishing vaccination requirements for federal employees,140 requiring new

federal contract labor practices,141 and changing servicemembers’ health care.142 The APA

contains a similar exemption from its general rulemaking requirements.143 Courts have concluded

that the APA exemption covers agency statements such as policies for hiring employees.144 A rule

does not fall within this exemption solely because it is “directed at government personnel.”145

Rather, courts have viewed the APA exception to cover internal matters146 that do not

substantially affect parties outside an agency.147

As a matter of statutory interpretation, it may be unclear whether the substantial-effect

requirement that courts developed in the APA context should be read into the CRA. Courts

generally presume that where Congress adopts language from another statute, it also intends to

incorporate any settled judicial interpretations of that same language.148 Nonetheless, the CRA’s

exemption for rules relating to agency management or personnel does not expressly mention a

rule’s effect on third parties.149 By contrast, another of the CRA’s exemptions—for “any rule of

agency organization, procedure, or practice that does not substantially affect the rights or

obligations of non-agency parties”—does.150 This distinction in language could indicate that

Congress intentionally chose to create a substantial-effect requirement for the latter exception

while omitting this limitation from the former one151 so that the former excludes “any rule

relating to agency management or personnel” regardless of its impact on third parties.152 On this

view, the difference in phrasing would displace the ordinary presumption that Congress

incorporates case law interpreting similar statutory provisions.153 This interpretation could mean

139 Off. of Personnel Mgt., B-334221, 2023 WL 1927816, at *5 (Comp. Gen. Feb. 9, 2023).

140 Off. of Personnel Mgt., B-334237, 2023 WL 2836787, at *4 (Comp. Gen. Apr. 6, 2023).

141 Off. of Mgt. and Budget and U.S. Dep’t of Lab., B-335142, 2024 WL 1928503, at *4 (Comp. Gen. May 1, 2024).

142 U.S. Dep’t of Def., B-335115, 2023 WL 6284680, at *4 (Comp. Gen. Sept. 26, 2023).

143 5 U.S.C. § 553(a)(2).

144 See Stewart v. Smith, 673 F.2d 485, 496, 499 (D.C. Cir. 1982) (characterizing policy of refusing to hire persons over

34 years old for jobs within correctional facilities as a “matter relating to agency management or personnel”). See also

Hamlet v. United States, 63 F.3d 1097, 1103 (Fed. Cir. 1995) (suggesting personnel handbooks might fall within this

APA exception).

145 Joseph v. U.S. Civil Serv. Comm’n, 554 F.2d 1140, 1153 n.23 (D.C. Cir. 1977).

146 See Tunik v. MSPB, 407 F.3d 1326, 1342 (Fed. Cir. 2005).

147 Stewart, 673 F.2d at 498 (noting prior cases had suggested that this “substantial effect” requirement might exist, but

declining to adopt that requirement itself).

148 E.g., Jama v. ICE, 543 U.S. 335, 349 (2005).

149 See 5 U.S.C. § 804(3)(B).

150 See id.

151 See, e.g., Russello v. United States, 464 U.S. 16, 23 (1983) (“[Where] Congress includes particular language in one

section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.”). See also Stewart v. Smith, 673 F.2d 485, 498

(D.C. Cir. 1982) (declining to hold that the APA’s two exemptions for agency matters are coextensive, because “to read

the two exemptions as identical . . . would . . . ignore considerable differences between the language used”).

152 See 5 U.S.C. § 804(3)(B). The post-enactment legislative history of the CRA is arguably unclear on this point. See

142 CONG. REC. 6930 (statement of Rep. Hyde) (“Subsection 804(3)(B) excludes ‘any rule relating to agency

management or personnel’ from the definition of a rule. Pursuant to subsection 804(3)(C), however, a ‘rule of agency

organization, procedure, or practice,’ is only excluded if it ‘does not substantially affect the rights or obligations of

non-agency parties.’ The committees’ intent in these subsections is to exclude matters of purely internal agency

management and organization, but to include matters that substantially affect the rights or obligations of outside

parties.”).

153 See Jama v. ICE, 543 U.S. 335, 351–52 (2005) (holding principle did not apply where judicial authority was “too

flimsy” to justify the presumption); Gen. Motors Corp. v. Devex Corp., 461 U.S. 648, 654 (1983) (holding principle did

not apply where language of predecessor statute differed from challenged provision).

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that the CRA’s exception for rules relating to agency management or personnel may be

interpreted more broadly than the APA exception.

However, it is also possible that Congress chose not to include the substantial-effect requirement

in this exception because “prior judicial interpretation” of the identical phrases in the APA made

such language unnecessary.154 Congress may have added a substantial-effect requirement to the

CRA exception for rules of agency organization, procedure, or practice in order to settle some

ambiguity in the cases interpreting the parallel provision of the APA, as described below.155

Regardless, GAO has interpreted the CRA exception for rules relating to agency management or

personnel to apply only “to purely internal agency matters, with no effect on non-agency

parties.”156 In one opinion, GAO said that if a rule has an effect on third parties, then it must go

on to consider the exception for rules of agency organization, procedure, or practice.157 At the

same time, like courts interpreting the similar APA exception, GAO has also recognized that

personnel policies may sometimes “have an effect on individuals outside” an agency, but where

that effect is “inextricably tied to” the third party’s relationship with a federal employee, the rule

may still fall within the CRA exception for agency management or personnel rules.158

In evaluating the “agency management” aspect of this exception, as opposed to the “personnel”

provision, GAO has said “rules relating to management include those related to controlling,

directing, or supervising internal management issues.”159 In one 2003 ruling, GAO concluded that

a memorandum terminating a program that financed certain loans for the sale of agency

properties fell within the exclusion.160 GAO said the agency’s decision about how to dispose of

the properties was “the type of management decision left to the discretion” of the agency head.161

In a 2024 opinion, GAO ruled that requiring agencies to designate certain staff as labor advisors

and recommending their job duties qualified as “management decisions.”162 In a separate 2024

opinion, GAO said that part of an agency alert recommending communications strategies fell

within this exception because it provided direction to agency communications personnel, thereby

“conducting or supervising . . . interagency business.”163

Rules of Agency Organization, Procedure, or Practice

Finally, the CRA exempts “any rule of agency organization, procedure, or practice that does not

substantially affect the rights or obligations of non-agency parties.”164 The APA also excludes

154 See United States v. Ressam, 553 U.S. 272, 282 (2008) (Breyer, J., dissenting) (“[O]ne can explain the absence of

the words ‘in relation to’ in less damaging ways. The legislative drafters of the . . . amendment may have assumed that

prior judicial interpretation . . . made the words ‘in relation to’ unnecessary.”).

155 See infra notes 171–177 and accompanying text.

156 Off. of Personnel Mgt., B-334237, 2023 WL 2836787, at *3 (Comp. Gen. Apr. 6, 2023).

157 Off. of Personnel Mgt., B-334221, 2023 WL 1927816, at *4 n.3 (Comp. Gen. Feb. 9, 2023).

158 U.S. Dep’t of Def., B-335115, 2023 WL 6284680, at *4 (Comp. Gen. Sept. 26, 2023). Specifically, GAO

recognized in that opinion that a policy granting service members a travel allowance to seek certain types of health care

may affect non-agency parties, but said the allowances were still part of the service members’ benefits packages—a

“personnel matter[].” Id.

159 5 U.S.C. § 804(3)(B); Off. of Mgt. and Budget, B-336512, 2024 WL 4005940, at *7 (Comp. Gen. Aug. 29, 2024).

160 U.S. GOV’T ACCOUNTABILITY OFF., B-292045, WHETHER A DEPARTMENT OF VETERANS AFFAIRS MEMORANDUM IS A

RULE UNDER THE CONGRESSIONAL REVIEW ACT (2003).

161 Id.

162

Off. of Mgt. and Budget and U.S. Dep’t of Lab., B-335142, 2024 WL 1928503, at *4 (Comp. Gen. May 1, 2024).

163 Off. of Mgt. and Budget, B-336512, 2024 WL 4005940, at *8 (Comp. Gen. Aug. 29, 2024).

164 5 U.S.C. § 804(3)(C).

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“rules of agency organization, procedure, or practice” from notice-and-comment rulemaking

procedures.165 Courts have held that the APA exception includes agency decisions relating to how

regulated entities must go about satisfying investigative requirements.166 Similarly, GAO has said

the CRA exception applies to rules that change the timing of when a regulated entity has to

submit certain materials but do not ultimately change the substantive criteria the agency will

apply to assess compliance.167 GAO has also concluded, for instance, that the CRA exception

encompassed an agency document dictating the types of evidence an agency would consider

because it only applied to agency officials.168

Unlike the CRA, the APA’s exception for procedural rules does not expressly refer to rules

without a substantial effect on “the rights or obligations of non-agency parties.”169 Nonetheless,

courts have sometimes read a similar limitation into the APA exemption,170 and so the case law

defining this requirement may be relevant to determine the scope of the CRA exemption.

However, in the cases interpreting the APA’s procedural exception, the impact of a rule on a third

party is not the only factor courts use to assess whether a rule is procedural.171 Instead, courts

have engaged in at least two kinds of inquiries.172

The first inquiry is the “substantial impact test,” which asks whether the agency action

substantially impacts the regulated industry.173 Under this test, “a procedural rule ‘does not itself

alter the rights or interests of parties, although it may alter the manner in which the parties present

themselves or their viewpoints to the agency.’”174 However, the D.C. Circuit has observed that

even rules best characterized as procedural may have a significant effect on regulated parties, and,

accordingly, has held that “a rule with a ‘substantial impact’ upon the persons subject to it is not

165 Id. § 553(b)(A).

166 See, e.g., Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045–48 (D.C. Cir. 1987) (holding that agency manual setting

out “enforcement plan” for agency’s employees to review regulated entities contained “classic procedural rules”

(emphasis omitted)); Guardian Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d 658, 665–66 (D.C.

Cir. 1978) (holding that regulation providing that the agency would no longer audit insured institutions in the course of

their examinations, and that institutions must satisfy the regulatory audit requirement by other means, was a rule “of

agency procedure”); EDF v. EPA, 515 F. Supp. 3d 1135, 1148 (D. Mont. 2021) (compiling examples of procedural

rules).

167 See, e.g., Cong. Requesters, B-330843, 2019 WL 5448291, at *9–10 (Comp. Gen. Oct. 22, 2019); U.S. Dep’t of

Educ., B-335516, 2024 WL 319735, at *4 (Comp. Gen. Jan. 24, 2024). See also Bd. of Governors of the Fed. Rsrv.

Sys., B-336217, 2024 WL 3721572, at *9 (Comp. Gen. Aug. 6, 2024) (concluding CRA does not apply to provisions

altering an agency notification process).

168 Hon. Jason Smith, B-329926, 2018 WL 4296553, at *4 (Comp. Gen. Sept. 10, 2018).

169 5 U.S.C. § 804(3)(C).

170 Pickus v. U.S. Bd. of Parole, 507 F.2d 1107, 1113 (D.C. Cir. 1974) (“This category . . . should not be deemed to

include any action which . . . substantially affects the rights of those over whom the agency exercises authority.”),

overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 104–05 (1977). See also, e.g., Batterton v. Marshall,

648 F.2d 694, 708 (D.C. Cir. 1980) (“The exemption cannot apply . . . where the agency action trenches on substantial

private rights and interests.”).

171 See, e.g., Texas v. United States, 787 F.3d 733, 765–66 (5th Cir. 2015).

172 See also AFL-CIO v. NLRB, 57 F.4th 1023, 1034 (D.C. Cir. 2023) (“We treat rules as procedural if they are

‘primarily directed toward improving the efficient and effective operations of an agency.’” (quoting Mendoza v. Perez,

754 F.3d 1002, 1023 (D.C. Cir. 2014))).

173 E.g., Dep’t of Labor v. Kast Metals Corp., 744 F.2d 1145, 1153 (5th Cir. 1984).

174 Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 5 (D.C. Cir. 2011) (quoting Chamber of Com.

of U.S. v. U.S. Dep’t of Labor, 174 F.3d 206, 211 (D.C. Cir. 1999)); cf., e.g., Texas, 787 F.3d at 765–66 (describing the

“substantial impact” test as looking to whether the rule “modifies substantive rights and interests” (quoting Kast Metals

Corp., 744 F.2d at 1153)).

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necessarily a substantive rule.”175 Consequently, the D.C. Circuit has also asked whether the rule

“encodes a substantive value judgment”176 or changes the “substantive standards” for evaluating

compliance.177

Given that the text of the CRA expressly excludes rules of agency organization, procedure, or

practice that do not “substantially affect the rights or obligations of non-agency parties,”178 the

CRA appears to mandate the use of something akin to the substantial impact test to determine

whether a rule falls within the exception.179 One of the sponsors of the CRA emphasized prior to

its passage that to determine whether a rule should be excluded under this provision, “the focus

. . . is not on the type of rule but on its effect on the rights or obligations of nonagency parties.”180

He went on to say that the exclusion covered only rules “with a truly minor, incidental effect on

nonagency parties.”181 Some GAO opinions, though, refer to the “substantive value judgment”

test.182 For instance, GAO said one agency memorandum encouraging federal grant funds to be

used for certain types of projects had an “overriding purpose” of advancing a “value judgment”

that certain types of projects were preferable.183 The memorandum’s goal was “not to accomplish

internal housekeeping,” but to encourage the selection of certain types of projects.184

Nonetheless, many other GAO opinions evaluating the application of this exception refer to the

substantial impact test.185 Apparently as part of this inquiry, GAO has looked to whether an

agency action changes the “substantive standards” for evaluating compliance with legal

obligations.186 GAO has not said what degree of effect on rights or obligations qualifies as

“substantial,” but it has reiterated that substantiality is part of the statutory standard and that GAO

must evaluate rules based on their “likely effects . . . before they occur.”187 In a few opinions,

GAO has concluded that an agency statement has no effect on third parties’ legal rights or

obligations where any consequences from noncompliance stem from an “independent legal

175 Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 5 (D.C. Cir. 2011) (emphasis added). See also

Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1047 (D.C. Cir. 1987) (noting that court’s “gradual move away from

looking solely into the substantiality of the impact”). Cf. Time Warner Cable Inc. v. FCC, 729 F.3d 137, 168 (2d Cir.

2013) (acknowledging that “all procedural rules affect substantive rights to some extent” and concluding that the

distinction between substantive and procedural rules might be “one of degree” (quoting Elec. Privacy Info. Ctr., 653

F.3d at 5)).

176 Pub. Citizen, Inc. v. Dep’t of State, 276 F.3d 634, 640 (D.C. Cir. 2002).

177 JEM Broad. Co. v. FCC, 22 F.3d 320, 327 (D.C. Cir. 1994); accord, e.g., In re Chestek PLLC, 92 F.4th 1105, 1109–

10 (Fed. Cir. 2024).

178 See 5 U.S.C. § 804(3)(C).

179 See U.S. GOV’T ACCOUNTABILITY OFF., B-275178, STATUS OF THE TONGASS NATIONAL FOREST LAND AND

RESOURCE MANAGEMENT PLAN UNDER THE SMALL BUSINESS REGULATORY ENFORCEMENT FAIRNESS ACT 13 (2003).

180 142 CONG. REC. 6907 (statement of Rep. McIntosh). Courts are sometimes skeptical of statements made by

individual legislators. E.g. Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 599 (2004).

181 Id. (“[T]his exception should be read narrowly and resolved in favor of nonagency parties who can demonstrate that

the rule will have a nontrivial effect on their rights or obligations.”).

182 E.g., Hon. Lisa Murkowski, B-238859, 2017 WL 4772605, at *6–7 (Comp. Gen. Oct. 23, 2017).

183 Fed. Hwy. Admin., B-334032.2, 2023 WL 2809886, at *6 (Comp. Gen. Apr. 5, 2023).

184 Id. at *7. See also U.S. Dep’t of the Int., Bureau of Ocean Energy Mgt., B-335629, 2024 WL 3338928, at *7 (Comp.

Gen. July 8, 2024) (saying “rules not focused on agency internal operations” do not qualify for the exception).

185 E.g., Hon. Jason Smith, B-329926, 2018 WL 4296553, at *3 (Comp. Gen. Sept. 10, 2018); Cong. Requesters, B330843, 2019 WL 5448291, at *5 (Comp. Gen. Oct. 22, 2019).

186 E.g., Hon. Mark Meadows, B-329916, 2018 WL 2254709, at *3–4 (Comp. Gen. May 17, 2018); see also Cong.

Requesters, B-330843, 2019 WL 5448291, at *10 (Comp. Gen. Oct. 22, 2019) (concluding that an agency statement

did “not change the substantive criteria” for a federal program).

187 Fed. Hwy. Admin., B-334032.2, 2023 WL 2809886, at *2–3, 5 (Comp. Gen. Apr. 5, 2023).

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obligation” established elsewhere.188 In contrast, where a statement “forwards a novel

interpretation of the law” that does expand rights and obligations, GAO has said it does not

qualify for this exception.189

Apart from the differences in statutory text, another reason the CRA’s procedural exception might

be viewed differently from the APA’s procedural exception is the distinct context. As discussed

above, the APA’s notice-and-comment procedures apply only to substantive rules, defined as rules

that are legally binding.190 Accordingly, courts inquiring into whether a rule qualifies as

“‘procedural’ or ‘substantive’” under the APA are looking to whether a rule modifies rights in a

way that implicates the need for public participation.191 In contrast, the CRA can include both

substantive and non-substantive rules—that is, rules that are not legally binding. This creates an

interpretive question that does not exist under the APA: when does a rule without legal effect

nonetheless have a substantial effect on “the rights or obligations of non-agency parties”?192

In a few opinions, GAO has said that even though an agency statement is nonbinding, it may

nonetheless have a substantial effect on third-party rights or obligations where it “encourage[s]” a

regulated community to change their “internal operations or policies.”193 One 2024 opinion

concluded that an OMB alert recommending that agencies take certain actions to implement

funding agreements did not qualify for the exception even though the alert was directed toward

agencies rather than funding recipients or third parties.194 GAO said that it had to consider the

“indirect effects” of the alert, which was “intended to and has led agencies to incorporate new . . .

requirements into the terms and conditions of federal funding agreements beyond what is required

by law.”195 According to GAO, providing new criteria for federal funds had a “substantial effect

on the rights or interests of third parties.”196

CRA Requirement for Submission of Rules

The CRA requires agencies to submit actions that fall within the CRA’s definition of a rule to

both houses of Congress and to GAO before the actions may take effect. Section 801(a)(1)(A) of

the CRA requires the agency to submit a report containing a copy of the rule to each house of

188 Hon. Mark Meadows, B-329916, 2018 WL 2254709, at *4 (Comp. Gen. May 17, 2018); accord Hon. Edward

Markey, B-330190, 2018 WL 6632991, at *5 (Comp. Gen. Dec. 19, 2018); Dep’t of Homeland Sec., B-334045, 2023

WL 4362791, at *6 (Comp. Gen. July 5, 2023).

189 U.S. Dep’t of Agric., Food and Nutrition Serv., B-334411, 2023 WL 3842839, at *5 (Comp. Gen. June 5, 2023). See

also, e.g., U.S. Dep’t of Transp., B-335488, 2023 WL 6891971, at *6 (Comp. Gen. Oct. 18, 2023) (concluding a notice

of funding opportunity did “more than echo” requirements set out in statute because it exercised the agency’s

“discretion and gap-filling authority” to elaborate on the statutory terms); accord U.S. Dep’t of Com., B-335175, 2024

WL 2023285, at *3–4 (Comp. Gen. May 6, 2024). Thus, there is possible overlap between this inquiry and the

requirement that a rule must “implement, interpret, or prescribe law or policy”: GAO has said a statement that leaves

the world as it found it and does not change policy does not qualify as a “rule” under the APA definition. U.S. Dep’t of

Health and Hum. Serv., Ctr for Disease Control and Prevention, B-335316, 2023 WL 8278750, at *4 (Comp. Gen.

Nov. 29, 2023); see supra “Identifying “Rules” Under the APA.”

190 See supra “Identifying “Rules” Under the APA.”

191 Dep’t of Labor v. Kast Metals Corp., 744 F.2d 1145, 1153 (5th Cir. 1984); accord Elec. Privacy Info. Ctr. v. U.S.

Dep’t of Homeland Sec., 653 F.3d 1, 5–6 (D.C. Cir. 2011).

192 5 U.S.C. § 804(3)(C).

193 Fed. Hwy. Admin., B-334032, 2022 WL 17744101, at *4 (Comp. Gen. Dec. 15, 2022) (coming to this conclusion

and citing prior opinions).

194

Off. of Mgt. and Budget, B-336512, 2024 WL 4005940, at *9 (Comp. Gen. Aug. 29, 2024).

195 Id. at *9–10.

196 Id. at *10.

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Congress and the Comptroller General; a concise general statement relating to the rule, including

whether it is a major rule; and the proposed effective date of the rule.197 The agency is also

required to submit additional information pertaining to any cost-benefit analysis the agency

conducted, along with information on the agency’s actions resulting from other regulatory impact

analysis requirements, including the Regulatory Flexibility Act and the Unfunded Mandates

Reform Act.198 For major rules, after receiving this information, GAO is required to assess the

agency’s compliance with these additional informational requirements in a report to the

congressional committees of jurisdiction. GAO must submit this major rule report to Congress

within 15 calendar days of the submission of the rule or its publication in the Federal Register,

whichever date is later.199

The “report” that agencies are required to submit along with the rule, in practice, is a two-page

form on which they provide the information required under Section 801(a)(1)(A) and, for major

rules, most of the information required to be included in GAO’s major rule report. In FY1999

appropriations legislation, Congress required the Office of Management and Budget (OMB) to

provide agencies with a standard form to use to meet this reporting requirement.200 OMB issued

the form in March 1999 as part of larger guidance to agencies on compliance with the CRA.201 A

copy of the form is provided in Appendix A of this report.202

When final rules are submitted to Congress, notice of each chamber’s receipt and referral appears

in the respective House and Senate sections of the daily Congressional Record devoted to

“Executive Communications.” Notice of each chamber’s receipt is also entered into a database

that can be searched using Congress.gov.203 When the rule is submitted to GAO, a record of its

receipt at GAO is noted in a database on GAO’s website as well.204

The time periods for the fast-track procedures in the CRA begin once the rule is received in

Congress and published in the Federal Register, if so published, and Members may then use the

procedures to consider a joint resolution of disapproval. Thus, submission of rules to Congress

under the CRA is central to its operation, because the receipt of the rule in Congress triggers the

availability of the CRA’s fast-track procedures for introduction and consideration of a joint

resolution disapproving the rule.205 In other words, under the terms of the statute, if an agency

197 5 U.S.C. § 801(a)(1)(A).

198 Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164 (1980); Unfunded Mandates Reform Act, Pub. L. No.

104-4, 109 Stat. 48 (1995).

199 5 U.S.C. § 801(a)(2)(A).

200 Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, 112 Stat.

2681.

201 Memorandum from Jacob J. Lew, Director, Off. of Mgmt. and Budget, to the Heads of Departments, Agencies, and

Independent Establishments on Guidance for Implementing the Congressional Review Act, M-99-13, *9–10 (Mar. 30,

1999).

202 OMB, SUBMISSION OF FEDERAL RULES UNDER THE CONGRESSIONAL REVIEW ACT, FORM 24722 (Mar. 23, 1999),

https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/inforeg/inforeg/fed_rule.pdf.

203 These databases can be searched on the homepage of Congress.gov under “Senate Communications” and “House

Communications.” House Communications, CONGRESS.GOV,

https://www.congress.gov/search?q=%7B%22source%22%3A%22house-communications%22%7D (last visited Oct.

21, 2024); Senate Communications, CONGRESS.GOV,

https://www.congress.gov/search?q=%7B%22source%22%3A%22senate-communications%22%7D (last visited Oct.

21, 2024).

204 Congressional Review Act: Database of Rules, GAO, https://www.gao.gov/legal/congressional-review-act/searchdatabase-of-rules (last visited Oct. 21, 2024).

205 For an overview of these procedures, see CRS Report R43992, The Congressional Review Act (CRA): Frequently

Asked Questions, by Maeve P. Carey and Christopher M. Davis (2021).

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fails to submit a rule to Congress, the House and Senate are unable to avail themselves of the fasttrack procedures to overturn the rule.

Agency Compliance with Submission Requirement

Following enactment of the CRA in 1996, some Members of Congress and others raised concerns

over agencies not submitting their rules on several occasions. At a hearing on the CRA in 1997,

witnesses observed that agencies were not in full compliance with the submission requirement,

although they also indicated that agencies appeared to be seeking “in good faith” to comply with

the statute.206 At a hearing in 1998 on implementation of the CRA, GAO’s General Counsel

testified that agencies were often not sending their rules to GAO or Congress.207 Also in 1998, to

further improve agency compliance with the CRA, Congress required OMB to issue guidance on

certain provisions of the CRA, specifically including the submission requirement.208

Because agencies were initially inconsistent about submitting their rules, GAO began to monitor

agencies’ compliance with the submission requirement by comparing the final rules that were

published in the Federal Register with rules that were submitted to GAO.209 This was not a role

that was required under the CRA; rather, GAO conducted these reviews voluntarily. As GAO’s

General Counsel testified in 1998, GAO

conducted a review to determine whether all final rules covered by the Congressional

Review Act and published in the Register were filed with the Congress and the GAO. We

performed this review both to verify the accuracy of our own data base and to ascertain the

degree of agency compliance with the statute. We were concerned that regulated entities

may have been led to believe that rules published in the Federal Register were effective,

when, in fact, they were not unless filed in accordance with the statute.210

After its review of agency compliance with the submission requirement, in November 1997,

GAO submitted to OMB’s Office of Information and Regulatory Affairs (OIRA) a list of the rules

that had been published in the Federal Register but had not been submitted to GAO.211 According

to GAO, OIRA distributed this list to affected agencies; GAO then followed up again with the

206 Congressional Review Act: Hearing Before the H. Comm. on the Judiciary, Subcomm. on Commercial and Admin.

Law, 105th Cong. 134, 49 (1997) (statement of Peter Strauss, Columbia Law School Professor, observing that many

agency actions that fall outside the scope of what agencies publish in the Federal Register as part of regular notice-andcomment rulemaking proceedings were not being submitted).

207 OIRA Implementation of the Congressional Review Act: Hearing Before the H. Comm. on Gov’t Reform and

Oversight, Subcomm. on Nat’l Econ. Growth, Nat. Res. and Regul. Aff., 105th Cong. (1998).

208 Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, 112 Stat.

2681. To comply with this requirement, then-OMB Director Jacob J. Lew issued a memorandum for agencies in March

1999. Memorandum from Jacob J. Lew, Director, Off. of Mgmt. and Budget, to the Heads of Departments, Agencies,

and Independent Establishments on Guidance for Implementing the Congressional Review Act, M-99-13 (Mar. 30,

1999). The Lew memorandum provided information such as where agencies should send their rules in the House and

Senate, what information the agencies should include with the rule, and an explanation of what types of rules are

required to be submitted.

209 For a history of the correspondence between GAO and OIRA regarding agency compliance with the CRA, see CRS

Report R40997, Congressional Review Act: Rules Not Submitted to GAO and Congress, by Curtis W. Copeland (2009)

(on file with author).

210 See OIRA Implementation of the Congressional Review Act: Hearing Before the H. Comm. on Gov’t Reform and

Oversight, Subcomm. on Nat’l Econ. Growth, Nat. Res. and Regul. Aff., 105th Cong. 52 (1998).

211 CRS Report R40997, Congressional Review Act: Rules Not Submitted to GAO and Congress, by Curtis W.

Copeland (2009) (on file with author). OIRA has several responsibilities in the rulemaking process, including

determining whether rules are “major” under the CRA and reviewing most “significant” rules in accordance with

Executive Order 12866. For more information about OIRA review, see CRS Report RL32397, Federal Rulemaking:

The Role of the Office of Information and Regulatory Affairs, coordinated by Maeve P. Carey (2011).

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agencies that had rules that remained unsubmitted in February 1998.212 GAO stated in its March

1998 testimony that “[i]n our view, OIRA should have played a more proactive role in assuring

that the agencies were both aware of the statutory filing requirements and were complying with

them.”213

GAO continued to conduct similar reviews regularly, comparing the list of rules that agencies

submitted to GAO against rules that were published in the Federal Register. Until 2012, GAO

periodically sent letters to OIRA regarding rules that it had not received. In March 2012, GAO

notified OIRA that, due to resource constraints, it would no longer be sending lists of final rules

not received. Instead, GAO decided to continue to track only major rules not received.214

Submission of Notice-and-Comment Rules Versus Other Types of Documents

In general, although there have been exceptions noted by GAO, agencies appear to be fairly

comprehensive in submitting rules to Congress and GAO when those rules have been

promulgated through the APA’s notice-and-comment rulemaking process. GAO’s federal rules

database lists thousands of such rules each year.215 In the case of rules that are not subject to

notice-and-comment procedures, however, tracking compliance is more difficult, and practice

would suggest that agencies do not submit these types of actions as consistently.216

The higher incidence of noncompliance with the CRA’s submission requirement for agency

actions that were conducted outside the notice-and-comment rulemaking process may be due in

part to the practical difficulty of submitting the substantial number of agency statements that

qualify as rules under the CRA. GAO has determined that the CRA’s submission requirement can

extend to such actions as website announcements217 and policy memoranda.218 In congressional

testimony in 1997, one administrative law scholar argued that agencies “annually take tens of

thousands of actions” that would fall under the CRA’s definition of rule, and that

[w]ere agencies to comply fully with [the CRA’s] requirement that all these matters be

filed with Congress as a condition of their effectiveness (as it appears, thus far, they are

not doing), Congress and the GAO would be swamped with filings. Burying Congress in

paper might even seem a useful means of diverting attention from larger, controversial

matters; haystacks can be useful for concealing needles. No one believes many, if any, of

these rules will be the subjects of resolutions of disapproval. Yet for them even simple

212 CRS Report R40997, Congressional Review Act: Rules Not Submitted to GAO and Congress, by Curtis W.

Copeland (2009) (on file with author).

213 OIRA Implementation of the Congressional Review Act: Hearing Before the H. Comm. on Gov’t Reform and

Oversight, Subcomm. on Nat’l Econ. Growth, Nat. Res. and Regul. Aff., 105th Cong. 53 (1998).

214 CURTIS W. COPELAND, CONGRESSIONAL REVIEW ACT: MANY RECENT FINAL RULES WERE NOT SUBMITTED TO GAO

AND CONGRESS (2014), https://legacy-assets.eenews.net/open_files/assets/2017/02/22/document_pm_01.pdf.

215 See Congressional Review Act: Database of Rules, GAO, https://www.gao.gov/legal/congressional-reviewact/search-database-of-rules (last visited Oct. 21, 2024).

216 See, e.g., Shining Light on Regulatory Dark Matter: Hearing Before the H. Comm. on Oversight and Gov’t Reform,

115th Cong. 10 (2018); see also Press Release, Committee On Oversight and Accountability, Committee Report

Scrutinizes Federal Regulatory Guidance Practices (Mar. 15, 2018), https://oversight.house.gov/report/committeereport-scrutinizes-federal-regulatory-guidance-practices/ (identifying a small number of agency guidance documents

that agencies submitted to Congress under the CRA during the 10-year period the committee studied in its report).

217 U.S. Dep’t of Educ., B-335516, 2024 WL 319735, at *4 (Comp. Gen. Jan. 24, 2024).

218 E.g., U.S. Dep’t of Agric., Food and Nutrition Serv., B-334411, 2023 WL 3842839, at *1 (Comp. Gen. June 5,

2023).

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accompanying documents to permit data analysis and tracking, such as GAO has been

proposing, would impose significant aggregate costs, well beyond their possible benefit.219

Although GAO has voluntarily tracked agency compliance with the submission requirement, its

methodology for doing so would not have resulted in a complete list of agency actions that should

have been submitted.220 GAO’s point of reference was to compare regulations that were published

in the Federal Register against regulations it received pursuant to the CRA. Most rules that are

required to be published in the Federal Register are indeed subject to the CRA, making this a

potentially helpful method of identifying rules that were not submitted. However, many other

agency actions that are not subject to notice-and-comment requirements are not generally

published in the Federal Register and are also not submitted to GAO. As discussed, the CRA can

encompass rules that are not subject to notice-and-comment requirements.221 Therefore, using this

method, many rules that should have been submitted likely were undetected by GAO and thus not

included in the lists of unsubmitted rules it sent to OIRA and to the agencies.

GAO’s Role in Determining Whether an Agency Action Is Covered

by the CRA

Given the lack of comprehensive agency compliance with the CRA’s reporting requirement,

Congress has developed a practice that has involved seeking an opinion from GAO on whether a

specific agency action should have been submitted under the CRA (i.e., whether the action is

covered by the CRA’s definition of “rule”). To date, GAO has issued several dozen such opinions

in response to Member requests.222 These opinions are listed in a table in Appendix B to this

report, and the substance of some of the opinions is discussed above in defining a CRA “rule.”

In recent years, the Senate has treated publication in the Congressional Record of a GAO opinion

classifying an agency action as a rule as the trigger date for the initiation period to introduce a

joint resolution of disapproval and for the action period during which such a joint resolution

qualifies for fast-track consideration in the Senate.223 Thus, the question of whether Congress may

use the CRA’s fast-track parliamentary disapproval mechanism generally hinges upon the

determination reached in GAO’s opinion in such cases. By allowing the GAO opinion to serve as

a substitute for the actual submission of a rule, the Senate can still avail itself of the CRA’s fasttrack procedures to overturn rules.

Origin and Basis of GAO’s Role

In responding to requests from Members for opinions on whether certain agency actions are

covered, GAO has played a significant role in determining the applicability of the CRA. The

219 House Congressional Review Act: Hearing Before the H. Comm. on the Judiciary, Subcomm. on Commercial and

Admin. Law, 105th Cong. 138 (1997) (statement of Peter Strauss, Columbia Law School Professor). Peter Strauss

argued that Congress should consider narrowing the scope of the CRA: “Congress . . . should assure that its limited

resources are addressed to the most important occasions for review, by adopting a mechanism for limiting the

application of the Act.”

220 See CRS Report R40997, Congressional Review Act: Rules Not Submitted to GAO and Congress, by Curtis W.

Copeland (2009) (on file with author) (describing GAO letters and methodology).

221 Supra “Types of Agency Actions Covered by the CRA.”

222 The letters from Members to GAO are not made public by GAO, but sometimes are released publicly by the

requesting Member. Examples of these letters that have been shared publicly can be obtained upon request from CRS.

Copies of the GAO opinions are available on GAO’s website. See Legal Decisions, GAO,

https://www.gao.gov/legal/congressional-review-act/legal-decisions (last visited Oct. 21, 2024).

223 See, e.g., 163 CONG. REC. 16445 (2017); 163 CONG. REC. 18507 (2017).

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history of the early implementation of the CRA, and GAO’s other activities under the CRA,

suggest that the role GAO plays with regard to determining whether a specific agency action is a

“rule” is linked to other activities GAO has engaged in regarding the CRA. GAO’s primary

statutory requirement under the CRA is to provide a report to the committees of jurisdiction on

each major rule and to include in the report information about the agency’s compliance with

various steps of the rulemaking process for each major rule.224 GAO itself has stated that “[i]n

conjunction with this statutory responsibility, GAO also issues opinions on CRA related questions

when requested by Members of the Congress. These opinions address issues such as whether an

agency document that was not issued as a rulemaking meets the CRA definition of a rule.”225

For non-major rules, soon after the CRA was enacted, GAO voluntarily created an online

database of rules submitted to it under the CRA.226 As GAO’s General Counsel explained in

congressional testimony in 1998:

Although the law is silent as to GAO’s role relating to the nonmajor rules, we believe that

basic information about the rules should be collected in a manner that can be of use to

Congress and the public. To do this, we have established a database that gathers basic

information about the 15-20 rules we receive on the average each day.227

The database can be used to search for rules by elements such as the title, issuing agency,

regulation identifier number, type of rule (major or non-major), effective date, and date received

by GAO. The website also contains links to each of GAO’s major rule reports.

GAO’s determination of whether agency actions are considered “rules” under the CRA appears to

be closely linked to its monitoring of agency compliance with the submission requirement as

discussed above. The question of whether an agency action meets the definition of “rule” under

the CRA is also a question of whether it should be submitted; arguably, then, GAO is addressing a

very similar question in its opinions on whether certain agency actions are covered as it was in its

initial reports to OIRA on agency compliance with the submission requirement.

A discussion of GAO’s role in a congressional hearing on the Tongass Land Management Plan in

1997 provides some indication of the voluntary and, initially, ad hoc nature of GAO’s role in this

regard.228 One of the issues that was addressed at the hearing was whether the plan should be

considered a rule under the CRA; GAO’s General Counsel was invited to testify at the hearing.

Six days before the hearing, GAO issued its second opinion on the applicability of the CRA, in

which it stated that the Tongass Land Management Plan should have been submitted as a rule

under the CRA.229 Former Senator Larry Craig, who had requested the opinion, asked GAO’s

General Counsel at the hearing about GAO’s role:

It is our understanding of your testimony and our own reading of the Regulatory Flexibility

Act that the [GAO] has been given the role of advising Congress and perhaps agencies on

whether their policy decisions constitute rules. It is our understanding that the GAO’s

224 5 U.S.C. § 801(a)(2)(A).

225 U.S. GOV’T ACCOUNTABILITY OFF., GAO-24-107329, GAO’S PROTOCOLS FOR LEGAL DECISIONS AND OPINIONS 8

(2024).

226 See Congressional Review Act: Database of Rules, GAO, https://www.gao.gov/legal/congressional-reviewact/search-database-of-rules (last visited Oct. 21, 2024).

227 OIRA Implementation of the Congressional Review Act: Hearing Before the H. Comm. on Gov’t Reform and

Oversight, Subcomm. on Nat’l Econ. Growth, Nat. Res. and Regul. Aff., 105th Cong. 58–59 (1998).

228 Tongass Land Management: Joint Hearings Before the S. Comm. on Energy and Nat. Res. and H. Comm. on Res.,

105th Cong. (1997).

229 U.S. GOV’T ACCOUNTABILITY OFF., B-275178, STATUS OF THE TONGASS NATIONAL FOREST LAND AND RESOURCE

MANAGEMENT PLAN UNDER THE SMALL BUSINESS REGULATORY ENFORCEMENT FAIRNESS ACT 13 (2003).

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independent opinion is generally given considerable weight by the agencies. Is this also the

GAO’s understanding of its role?230

In response, GAO’s General Counsel stated that the CRA

does not provide any identification of who is to decide what a rule is, unlike the issue of

whether a rule is a major rule or not, which, as [OIRA Administrator] Ms. Katzen pointed

out, has been assigned to her. So in that sense, I cannot say that GAO has a special role

under the statute for making that determination. The decision, the opinion, that we issued

last week on the question [of whether the Tongass Land Management Plan was a rule under

the CRA] was done in our role as adviser to the Congress in response to the request of three

chairmen of congressional committees.231

Thus, GAO acknowledged that its opinion was provided not pursuant to any specific provision of

the statute, but in its more general, advisory capacity.

Congressional Response to GAO Opinions Since 1996

Congress’s response to GAO’s opinions has evolved over time. Initially, GAO opinions finding

that agency actions were rules under the CRA did not lead to the introduction of joint resolutions

of disapproval—Members appear not to have introduced any joint resolutions of disapproval

following the five affirmative GAO opinions issued prior to 2008. In 2008, GAO issued an

opinion stating that a letter from the Centers for Medicare and Medicaid Services to state health

officials concerning the State Children’s Health Insurance Program was a rule for the purposes of

the CRA; in response, Senator John D. Rockefeller introduced S.J. Res. 44 to disapprove the

guidance provided in the letter.232 The Senate did not take further action on S.J. Res. 44.233

The first time either chamber took action on a resolution of disapproval introduced following a

GAO opinion was in 2012, when the House passed H.J. Res. 118, a resolution of disapproval that

would have overturned an information memorandum issued by the Department of Health and

Human Services relating to the implementation of the Temporary Assistance for Needy Families

program.234 The first time the Senate took action on such a resolution of disapproval was on April

18, 2018, when it passed S.J. Res. 57, overturning guidance from the Bureau of Consumer

230 Tongass Land Management: Joint Hearings Before the S. Comm. on Energy and Nat. Res. and H. Comm. on Res.,

105th Cong. 20 (1997).

231 Id.

232 Comptroller General, B-316048, 2008 WL 1795346 (Comp. Gen. Apr. 17, 2008); S.J. Res. 44, 110th Cong. (as

introduced, July 17, 2008).

233 S.J. Res. 44, 110th Cong. (as introduced, July 17, 2008). According to a press release from the Committee on

Finance two months later, the committee did not take further action on the resolution of disapproval because it had

missed the window during which the action would have been required to be taken under the CRA to use its fast-track

procedures. Press Release, United States Senate Committee on Finance, Senators Vow to Keep Fighting for Children’s

Health Care (July 22, 2008), https://www.finance.senate.gov/chairmans-news/senators-vow-to-keep-fighting-forchildrens-health-care.

In 2008, after Sen. Rockefeller introduced the resolution disapproving of the letter from the Centers for Medicare and

Medicaid Services, there was some dispute regarding when the CRA deadlines began. Id. The Senators supporting the

resolution argued that the CRA deadlines began either when the resolution was introduced or when CMS affirmatively

refused to submit the rule to Congress; however, it was ultimately decided that the clock started ticking on the day that

GAO published its opinion determining that the agency letter was a rule. Id.

234 H.J. Res. 118, 112th Cong. (as passed by House, Sept. 20, 2012). Memorandum from Earl S. Johnson, Director

Office of Family Assistance, to the States administering the Temporary Assistance for Needy Families (TANF)

Program and other interested parties on TANF-ACF-IM-2012-03 (Guidance Concerning Waiver and Expenditure

Authority Under Section 1115) (May 20, 2019), https://www.acf.hhs.gov/ofa/policy-guidance/tanf-acf-im-2012-03guidance-concerning-waiver-and-expenditure-authority-under.

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Financial Protection pertaining to indirect auto lending and the Equal Credit Opportunity Act.235

The House passed S.J. Res. 57 on May 8, 2018, and the President signed it into law on May 21,

2018.236

The frequency of Member requests for GAO opinions has increased over time. In the first decade

after the CRA’s enactment in 1996, GAO issued eight opinions total.237 In more recent years,

GAO has issued opinions much more frequently—in 2023, GAO issued 14 opinions; to date in

2024, it has issued 13.238

Consequences of GAO Opinions

Standing alone, a GAO opinion deciding whether an agency action is a “rule” covered by the

CRA does not have binding legal effect.239 As discussed, GAO’s role in determining whether

actions are subject to the CRA is not provided for in the CRA,240 and its opinions are thus likely

to be considered advisory.241 The opinions do not have any immediate effect other than advising

Congress as to whether GAO considers an agency action to meet the definition of “rule” under

the CRA.

As a matter of course, however, the Senate appears to have chosen to follow the GAO opinions.242

GAO described the practice as follows in one of its opinions relating to the applicability of the

CRA: “Congress has opted to treat the receipt of a GAO opinion concluding that an agency action

is a rule as triggering the statutory provisions that otherwise would have been triggered by the

agency’s submission. Thus, Congress has used GAO opinions to cure the impediment created by

the agency’s failure to submit the rule, protecting its review and oversight authorities.”243

A provision in the CRA barring judicial review makes it unlikely that a GAO opinion or any other

congressional determination stating that a rule is subject to the CRA would be subject to

challenge in court.244 The provision states that “[n]o determination, finding, action, or omission

under this chapter shall be subject to judicial review.”245 Most courts to consider the issue have

refused to review claims that an agency action should have been submitted to Congress as a rule

235 S.J. Res. 57, 115th Cong. (2018) (enacted); CONSUMER FINANCIAL PROTECTION BUREAU, INDIRECT AUTO LENDING

AND COMPLIANCE WITH THE EQUAL CREDIT OPPORTUNITY ACT, (March 21, 2013), https://files.consumerfinance.gov/f/

201303_cfpb_march_-Auto-Finance-Bulletin.pdf; Equal Credit Opportunity Act, Pub. L. No. 93-495, 88 Stat. 1500

(1974).

236 See Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act, Pub. L. No. 115-172, 132 Stat.

1290 (2018).

237 See infra Appendix B.

238 Id.

239 Cf., e.g., Konecranes Nuclear Equip. & Servs., LLC v. United States, 165 Fed. Cl. 421, 431 n.6 (Fed. Cl. 2023)

(“GAO opinions, although not binding on this Court, can be persuasive.”). Critically, the Comptroller General, a

legislative agent, is prohibited by the Constitution from executing the laws; the Supreme Court has accordingly struck

down statutory provisions that gave the Comptroller General “ultimate authority” to determine which budget cuts to

make. Bowsher v. Synar, 478 U.S. 714, 732–33 (1986).

240 See 5 U.S.C. §§ 801–808.

241 Cf., e.g., United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456, 463 n.6 (5th Cir. 1977).

242 Several Senators have stated that the publication of the GAO opinion in the Congressional Record would have the

effect of commencing the CRA’s time periods. See 163 CONG. REC. 16445 (2017); 163 CONG. REC. 18507 (2017).

243 Hon. Orrin Hatch, B-330376, 2018 WL 6266285, at *2 (Comp. Gen. Nov. 30, 2018).

244 5 U.S.C. § 805.

245 Id. This provision is discussed in more detail in CRS Report R43992, The Congressional Review Act (CRA):

Frequently Asked Questions, by Maeve P. Carey and Christopher M. Davis (2021).

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under the CRA.246 As a result, the question of whether an agency action is subject to the CRA and

its fast-track procedures will likely be settled in the political arena rather than in the courts, and, if

Congress continues to treat GAO opinions as determinative, those opinions likely will be the final

word on the issue.247

246 See, e.g., Montanans for Multiple Use v. Barbouletos, 568 F.3d 225, 229 (D.C. Cir. 2009); see also supra note 51.

247 Even if the CRA did not contain a provision barring judicial review, or if that provision were found not to apply to a

certain dispute, courts may be reluctant to intervene in a dispute regarding the application of the CRA to the extent that

it would require a court to second-guess congressional procedures. See, e.g., Leach v. Resolution Trust Corp., 860 F.

Supp. 868, 875 (D.D.C. 1994) (declining to resolve dispute over the meaning of a statutory term because it would

require court to meddle in Congress’s internal affairs). See also NLRB v. Noel Canning, 573 U.S. 513, 550–54 (2014)

(acknowledging “the Constitution’s broad delegation of authority to the Senate to determine how and when to conduct

its business”).

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Appendix A. P.L. 104-19 Submission Form for Rules

Under the CRA

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Source: Form available on the White House website at https://www.whitehouse.gov/omb/informationregulatory-affairs/regulatory-matters/.

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Appendix B. Summary of GAO Opinions

Table B-1. GAO Opinions on Whether Certain Agency “Rules” Are Covered by the

Congressional Review Act

As of October 21, 2024

Agency Action

GAO

Opinion

Citation

Date of

Opinion

GAO Determination

Department of Agriculture

memorandum concerning the

Emergency Salvage Timber Sale

Program

B-274505

September 16,

1996

Agency action is a rule.

U.S. Forest Service Tongass National

Forest Land and Resource Management

Plan

B-275178

July 3, 1997

Agency action is a rule.

American Heritage River Initiative,

created by Executive Order 13,061

B-278224

November 10,

1997

Action is not a rule because the

President is not an agency under the

CRA.

EPA “Interim Guidance for Investigating

Title VI Administrative Complaints

Challenging Permits”

B-281575

January 20, 1999

Agency action is a rule.

Farm Credit Administration national

charter initiative

B-286338

October 17,

2000

Agency action is a rule.

Department of the Interior Record of

Decision “Trinity River Mainstem

Fishery Restoration”

B-287557

May 14, 2001

Agency action is a rule.

Department of Veterans Affairs (VA)

memorandum regarding the VA’s

marketing activities to enroll new

veterans in the VA health care system

B-291906

February 28,

2003

Agency action is not a rule because it

falls under the exception in 5 U.S.C.

§ 804(3)(C) (a rule of “agency

organization, procedure, or practice

that does not substantially affect the

rights or obligations of non-agency

parties”).

VA memorandum terminating Vendee

Loan Program

B-292045

May 19, 2003

Agency action is not a rule because it

falls under the exception in 5 U.S.C.

§ 804(3)(B) (a rule “relating to agency

management or personnel”) or (C) (a

rule of “agency organization,

procedure, or practice that does not

substantially affect the rights or

obligations of non-agency parties”).

Centers for Medicare and Medicaid

Services Letter on the State Children’s

Health Insurance Program

B-316048

April 17, 2008

Agency action is a rule.

Department of Health and Human

Services Information Memorandum

concerning the Temporary Assistance

to Needy Families Program

B-323772

September 4,

2012

Agency action is a rule.

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GAO

Opinion

Citation

Date of

Opinion

EPA proposed rule on Standards of

Performance for Greenhouse Gas

Emissions from New Stationary

Sources: Electric Utility Generating

Units

B-325553

May 29, 2014

Agency action is not a rule because it is

a proposed rule.

Office of the Comptroller of the

Currency, Federal Reserve Board, and

Federal Deposit Insurance Corporation

Interagency Guidance on Leveraged

Lending

B-329272

October 19,

2017

Agency action is a rule.

U.S. Forest Service 2016 Amendment

to the Tongass Land and Resource

Management Plan

B-238859

October 23,

2017

Agency action is a rule.

Bureau of Land Management Eastern

Interior Resource Management Plan

B-329065

November 15,

2017

Agency action is a rule.

Consumer Financial Protection Bureau

bulletin on Indirect Auto Lending and

Compliance with the Equal Credit

Opportunity Act

B-329129

December 5,

2017

Agency action is a rule.

U.S. Agency for International

Development fact sheet on global

health assistance and revisions to

standard provisions for U.S.

nongovernmental organizations

B-329206

May 1, 2018

Agency actions are not rules because

“federal courts have held that agencies’

implementation of presidential policymaking does not constitute a rule.”

IRS statement on health care reporting

requirements

B-329916

May 17, 2018

Agency action is not a rule because it

falls under the exception in 5 U.S.C.

§ 804(3)(C) (a rule of “agency

organization, procedure, or practice

that does not substantially affect the

rights or obligations of non-agency

parties”).

Social Security Administration Hearings,

Appeals, and Litigation Law Manual

(“HALLEX”) sections

B-329926

September 10,

2018

Agency action is not a rule because it

falls under the exception in 5 U.S.C.

§ 804(3)(C) (a rule of “agency

organization, procedure, or practice

that does not substantially affect the

rights or obligations of non-agency

parties”).

IRS Revenue Procedure 2018-38

B-330376

November 30,

2018

Agency action is eligible for review

“because IRS submitted the revenue

procedure as a rule” and “IRS’s

submission triggered Congress’s review

and oversight powers under CRA.” The

opinion took no position on whether

the document was a “rule.”

Agency Action

Congressional Research Service

GAO Determination

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Congressional Review Act: Which “Rules” Must Be Submitted to Congress

Agency Action

GAO

Opinion

Citation

Date of

Opinion

GAO Determination

Department of Justice memorandum to

federal prosecutors along the

southwest border of the United States

B-330190

December 19,

2018

Agency action is not a rule because it

falls under the exception in 5 U.S.C.

§ 804(3)(C) (a rule of “agency

organization, procedure, or practice

that does not substantially affect the

rights or obligations of non-agency

parties”).

Department of Commerce

memorandum regarding a citizenship

question on the 2020 Census

B-330288

February 7,

2019

Agency action is not a rule because it

does not meet the APA definition of a

“rule.”

Department of Health and Human

Services and Department of the

Treasury guidance entitled “State Relief

and Empowerment Waivers”

B-330811

July 15, 2019

Agency action is a rule.

Board of Governors of the Federal

Reserve System Supervision and

Regulation (SR) Letters (SR 12-17, SR

14-8, SR 15-7)

B-330843

October 22,

2019

SR 12-17 and SR 14-8 are rules; SR 157 is not a rule because it falls under the

exception in 5 U.S.C. § 804(3)(C) (a

rule of “agency organization,

procedure, or practice that does not

substantially affect the rights or

obligations of non-agency parties”).

Board of Governors of the Federal

Reserve System SR Letter 11-7

B-331324

October 22,

2019

Agency action is a rule.

Board of Governors of the Federal

Reserve System SR Letter 15-18

B-331560

April 16, 2020

Agency action is a rule.

Federal Communications Commission

order entitled LightSquared Technical

Working Group Report, et al. (Ligado

Order)

B-332233

August 13, 2020

Agency action is not a rule because it

meets the APA definition of an “order”

or falls under the exception in 5 U.S.C.

§ 804(3)(A) (a rule of particular

applicability).

IRS Notice 2020-65

B-332517

September 15,

2020

Agency action is eligible for disapproval

because the agency submitted it under

the CRA. The opinion took no position

on whether the document was a “rule.”

Department of Housing and Urban

Development Fair Housing Act

guidance on assistance animals

B-331171

December 17,

2020

Agency action is a rule.

Centers for Disease Control and

Prevention document entitled

“Requirement for Persons to Wear

Masks While on Conveyances and at

Transportation Hubs”

B-333501

December 14,

2021

Agency action is a rule.

Safer Federal Workforce Task Force

guidance entitled “COVID-19

Workplace Safety: Guidance for

Federal Contractors and

Subcontractors”

B-333725

March 17, 2022

Agency action is not a rule because

neither the task force nor the OMB, in

this instance, meet the CRA’s definition

of “agency.”

Department of Agriculture 2021

Updates to the Thrifty Food Plan

B-333732

July 28, 2022

Agency action is a rule.

Congressional Research Service

32

Congressional Review Act: Which “Rules” Must Be Submitted to Congress

Agency Action

GAO

Opinion

Citation

Date of

Opinion

GAO Determination

Federal Highway Administration

memorandum entitled “Information:

Policy on Using Bipartisan

Infrastructure Law Resources to Build a

Better America”

B-334032

December 15,

2022

Agency action is a rule.

(GAO was asked by a Senator to

reconsider this opinion; their response

confirmed their original conclusion. See

B-334032.2)

District of Columbia Court Services

and Offender Supervision Agency

notice entitled “Privacy Act of 1974;

System of Records”

B-334005

January 18, 2023

Agency action is not a rule because it

does not meet the APA definition of a

“rule.”

Office of Personnel Management

memorandum entitled “Achieving a $15

Per Hour Minimum Pay Rate for

Federal Employees”

B-334221

February 9,

2023

Agency action is not a rule because it

falls under the exception in 5 U.S.C.

§ 804(3)(B) (a rule “relating to agency

management or personnel”).

EPA document announcing denial of

petitions for small refinery exemptions

under the Renewable Fuel Standard

Program

B-334400

February 9,

2023

Agency action is not a rule because it

meets the APA definition of an “order”

or falls under the exception in 5 U.S.C.

§ 804(3)(A) (a rule of particular

applicability).

Department of Education website

announcement entitled “One-Time

Federal Student Loan Debt Relief” and

Federal Register document relating to

student loans

B-334644

March 17, 2023

Agency actions are a rule.

Office of Personnel Management

guidance on COVID-19 vaccination

requirement for federal employees

B-334237

April 6, 2023

Agency action is not a rule because it

falls under the exception in 5 U.S.C.

§ 804(3)(B) (a rule “relating to agency

management or personnel”).

Department of Agriculture actions

implementing four financial assistance

programs established with funds from

the Commodity Credit Corporation

B-334146

June 5, 2023

Agency actions are rules.

Food and Nutrition Service

memorandum entitled “Application of

Bostock v. Clayton County to Program

Discrimination Complaint Processing—

Policy Update”

B-334411

June 5, 2023

Agency action is a rule.

Department of Homeland Security

memoranda terminating the Migrant

Protection Protocols

B-334045

July 5, 2023

Agency actions are not a rule because

they fall under the exception in 5

U.S.C. § 804(3)(C).

Food and Drug Administration revision

of risk evaluation and mitigation

strategy for mifepristone

B-334995

July 6, 2023

Agency action is not a rule because it

meets the APA definition of an “order”

or falls under the exception in 5 U.S.C.

§ 804(3)(A) (a rule of particular

applicability).

Department of Defense memoranda

implementing changes to policies

regarding servicemembers'

reproductive health care

B-335115

September 26,

2023

Agency actions are not a rule because

they fall under the exception in 5

U.S.C. § 804(3)(B) (a rule “relating to

agency management or personnel”).

Congressional Research Service

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Congressional Review Act: Which “Rules” Must Be Submitted to Congress

Agency Action

GAO

Opinion

Citation

Date of

Opinion

GAO Determination

Department of Transportation notice

of funding opportunity for the FY20232024 Multimodal Project Discretionary

Grant Opportunity (MPDG)

B-335488

October 18,

2023

Agency action is a rule.

Securities and Exchange Commission

staff accounting bulletin (SAB No. 121)

B-334540

October 31,

2023

Agency action is a rule.

Centers for Disease Control and

Prevention document titled “Advisory

Committee on Immunization Practices

Recommended Immunization Schedule

for Children and Adolescents Aged 18

Years or Younger—United States,

2023”

B-335316

November 29,

2023

Agency action is not a rule because it

does not meet the APA definition of a

“rule” or falls under the exception in 5

U.S.C. § 804(3)(C) (a rule of “agency

organization, procedure, or practice

that does not substantially affect the

rights or obligations of non-agency

parties”).

EPA notice of decision entitled

“California State Motor Vehicle

Pollution Control Standards; Advanced

Clean Car Program; Reconsideration of

a Previous Withdrawal of a Waiver of

Preemption; Notice of Decision”

B-334309

November 30,

2023

Agency action is not a rule because it

meets the APA definition of an “order”

or falls under the exception in 5 U.S.C.

§ 804(3)(A) (a rule of particular

applicability).

Department of Education (Education)

website announcement of an "On

Ramp" toward repayment for student

loan borrowers

B-335516

January 24, 2024

Agency action is not a rule because it

falls under the exception in 5 U.S.C.

§ 804(3)(C) (a rule of “agency

organization, procedure, or practice

that does not substantially affect the

rights or obligations of non-agency

parties”).

Department of the Interior

announcement canceling oil leases in

the Arctic National Wildlife Refuge

B-335781

February 27,

2024

Agency action is not a rule because it

meets the APA definition of an “order”

or falls under the exception in 5 U.S.C.

§ 804(3)(A) (a rule of particular

applicability).

Federal Housing Finance Agency

(FHFA) announcements related to fees

charged by Fannie Mae and Freddie Mac

B-335424

March 7, 2024

Agency actions are not a rule because

Fannie Mae and Freddie Mac do not

meet the CRA’s definition of “agency,”

and neither does FHFA in this instance.

OMB and Department of Labor

memorandum titled “Strengthening

Support for Federal Contract Labor

Practices”

B-335142

May 1, 2024

Agency action is not a rule because it

falls under the exception in 5 U.S.C.

§ 804(3)(B) (a rule “relating to agency

management or personnel”).

U.S. Sentencing Commission

amendments to sentencing guidelines

B-335515

May 1, 2024

Agency action is not covered because

the Sentencing Commission does not

meet the CRA’s definition of “agency.”

Department of Commerce notice of

funding opportunity for CHIPS

Incentive Program

B-335175

May 6, 2024

Agency action is a rule.

Federal Energy Regulatory Commission

order entitled “Order Modifying and

Approving Surrender of License and

Removal of Project Facilities”

B-335030

May 8, 2024

Agency action is not a rule because it

meets the APA definition of an “order.”

Congressional Research Service

34

Congressional Review Act: Which “Rules” Must Be Submitted to Congress

GAO

Opinion

Citation

Date of

Opinion

Office of the U.S. Trade Representative

agreement with Japan on strengthening

critical minerals supply chains

B-335714

May 23, 2024

Agency action is not a rule because it

does not fall within the APA definition

of a “rule.”

National Institute of Standards and

Technology notice entitled “Request

for Information Regarding the Draft

Interagency Framework for

Considering the Exercise of March-In

Rights”

B-336146

May 28, 2024

Agency action is not a rule because it is

not a final agency action.

Bureau of Ocean Energy Management

notice entitled “Notice to Lessees and

Operators of Federal Oil and Gas, and

Sulphur Leases in the Gulf of Mexico

Outer Continental Shelf”

B-335629

July 8, 2024

Agency action is a rule.

Board of Governors of the Federal

Reserve System SR Letter 23-8

B-336217

August 6, 2024

Agency action is not a rule because it

falls under the exception in 5 U.S.C.

§ 804(3)(C) (a rule of “agency

organization, procedure, or practice

that does not substantially affect the

rights or obligations of non-agency

parties”).

OMB Controller Alert CA-23-6,

Enhancing Transparency Through Use of

the Investing in America Emblem on Signs

(UPDATED)

B-336512

August 29, 2024

Agency action is a rule.

FHFA bi-merge requirement and

determination regarding credit score

models

B-336260

October 1,

2024

Agency actions are not rules because

FHFA did not meet the CRA’s

definition of “agency” in taking the first

action and because the second action

meets the APA definition of an “order.”

Agency Action

GAO Determination

Source: Congressional Research Service. Opinions are listed on the GAO website at

https://www.gao.gov/legal/congressional-review-act/legal-decisions.

Note: This table lists agency actions for which Members of Congress requested GAO’s opinion as to the

applicability of the CRA.

Author Information

Valerie C. Brannon

Legislative Attorney

Congressional Research Service

Maeve P. Carey

Specialist in Government Organization and

Management

35

Congressional Review Act: Which “Rules” Must Be Submitted to Congress

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan

shared staff to congressional committees and Members of Congress. It operates solely at the behest of and

under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other

than public understanding of information that has been provided by CRS to Members of Congress in

connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not

subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in

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copy or otherwise use copyrighted material.

Congressional Research Service

R45248 · VERSION 8 · UPDATED

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