[Congressional Record Volume 167, Number 216 (Wednesday, December 15, 2021)]
[Senate]
[Pages S9206-S9208]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          GAO DECISION B-33501

  Mr. PAUL. Mr. President, I ask unanimous consent to have the attached 
issuance of the Government Accountability Office's Decision B-33501 
printed in the Congressional Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page S9207]]

  


                                Decision

     Matter of: Centers for Disease Control and Prevention-
         Applicability of Congressional Review Act to Requirement 
         for Persons to Wear Masks While on Conveyances and at 
         Transportation Hubs
     File: B-333501
     Date: December 14, 2021


                                 DIGEST

       On February 3, 2021, the Centers for Disease Control and 
     Prevention (CDC) published a document in the Federal Register 
     entitled Requirement for Persons to Wear Masks While on 
     Conveyances and at Transportation Hubs, 86 Fed. Reg. 8025 
     (Mask Requirement). Under the CDC's Mask Requirement all 
     persons using public conveyances such as planes, trains, and 
     buses must wear facial coverings while on the conveyance and 
     at transportation hubs such as airports and bus stations. CDC 
     did not submit a CRA report to Congress or the Comptroller 
     General on the Mask Requirement.
       The Congressional Review Act (CRA) requires that before a 
     rule can take effect, an agency must submit the rule to both 
     the House of Representatives and the Senate as well as the 
     Comptroller General, and provides procedures for 
     congressional review where Congress may disapprove of rules. 
     We conclude that the Mask Requirement meets the definition of 
     a rule for purposes of CRA and, therefore, is subject to 
     CRA's requirements for submission and congressional review. 
     With this decision, we are not taking a position on the 
     policy of imposing a mask requirement or what steps the 
     agency or Congress may take next; our decision only addresses 
     CDC's compliance with CRA's procedures for congressional 
     review.


                                DECISION

       The Centers for Disease Control and Prevention (CDC), a 
     component of the U.S. Department of Health and Human Services 
     (HHS), issued a document entitled Requirement for Persons to 
     Wear Masks While on Conveyances and at Transportation Hubs, 
     86 Fed. Reg. 8025 (Mask Requirement) that was published in 
     the Federal Register on February 3, 2021. Senator Rand Paul, 
     M.D., subsequently requested our legal decision as to whether 
     the Mask Requirement is a rule for purposes of the 
     Congressional Review Act (CRA). Letter from Senator Rand 
     Paul, M.D., to Comptroller General (Aug. 9, 2021). For the 
     reasons explained below, we conclude that it is.
       Our practice when rendering decisions is to contact the 
     relevant agencies to obtain their legal views on the subject 
     of the request. GAO, Procedures and Practices for Legal 
     Decisions and Opinions, GA0-06-1064SP (Washington, D.C.: 
     Sept. 2006), available at https://www.gao.gov/products/gao-
06-1064sp. Accordingly, we reached out to HHS to obtain the 
     agency's legal views. Letter from Managing Associate General 
     Counsel, GAO, to Acting General Counsel, HHS (Aug. 12, 2021). 
     We received HHS's response on September 28, 2021. Letter from 
     Acting General Counsel, HHS, to Managing Associate General 
     Counsel, GAO (Sept. 28, 2021).


                               background

     CDC Mask Requirement
       On January 31, 2020, in response to confirmed cases of 
     Novel Coronavirus Disease 2019 (COVID-19), the Secretary of 
     HHS declared a public health emergency under the Public 
     Health Service Act. The Secretary has renewed that 
     declaration, most recently on October 15, 2021. Subsequently, 
     the President declared that the COVID-19 outbreak constitutes 
     a national emergency under the National Emergencies Act. 
     Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020). 
     The national emergency declaration was continued on February 
     24, 2021. 86 Fed. Reg. 11,599 (Feb. 26, 2021).
       On January 29, 2021, CDC issued the Mask Requirement 
     pursuant to its regulatory authorities under the Public 
     Service Health Act with an effective date of February 1, 
     2021. Mask Requirement, at 8025-26. It was published in the 
     Federal Register on February 3, 3021.
       The Mask Requirement states that masks help prevent the 
     spread of COVID-19. Mask Requirement at 8028. The stated 
     intent of the Mask Requirement is to preserve human life; 
     maintain a safe and secure operating transportation system; 
     mitigate further introduction, transmission, and spread of 
     COVID-19 into and within the United States; and support 
     response efforts. Id. at 8027 (statement of intent).
       Under the Mask Requirement, a person must wear a mask while 
     boarding, disembarking, and traveling on any conveyance (such 
     as an aircraft, train, road vehicle, or vessel) into or 
     within the United States. Id. at 8026, 8029. A person also 
     must wear a mask while at a transportation hub (such as an 
     airport, bus terminal, port, or subway station) that provides 
     transportation within the United States. Id. It also requires 
     conveyance operators to only provide service to masked 
     passengers and to use best efforts to ensure passengers stay 
     masked during the entire trip. Id at 8029.
       The Mask Requirement provides several exemptions based on 
     the characteristics of a passenger or the travel scenario. 
     Id. at 8027-28. For instance, passengers under the age of two 
     are exempt, as is travel by private conveyance for personal, 
     noncommercial use. Id. at 8027, 8029. Other federal agencies 
     are required to take additional steps to enforce the Mask 
     Requirement. Id. at 8028, 8030. The Mask Requirement will 
     remain in effect until rescinded by CDC or the public health 
     emergency is ended by the Secretary of HHS. Id. at 8026.
     Congressional Review Act
       CRA, enacted in 1996 to strengthen congressional oversight 
     of agency rulemaking, requires federal agencies to submit a 
     report on each new rule to both Houses of Congress and to the 
     Comptroller General for review before a rule can take effect. 
     5 U.S.C. 801 (a)(1)(A). The report must contain a copy of the 
     rule, ``a concise general statement relating to the rule,'' 
     and the rule's proposed effective date. Id. Each House of 
     Congress is to provide the report on the rule to the chairman 
     and ranking member of each standing committee with 
     jurisdiction. 5 U.S.C. 801 (a)(1)(C). The CRA allows Congress 
     to review and disapprove rules issued by federal agencies for 
     a period of 60 days using special procedures. 5 U.S.C. 802. 
     If a resolution of disapproval is enacted, then the new rule 
     has no force or effect. Id.
       CRA adopts the definition of rule under the Administrative 
     Procedure Act (APA), 5 U.S.C. Sec. Sec. 551(4), which states 
     that a rule is ``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.'' 5 U.S.C. 804(3). CRA excludes 
     three categories of rules from coverage: (1) rules of 
     particular applicability; (2) rules relating to agency 
     management or personnel; and (3) rules of agency 
     organization, procedure, or practice that do not 
     substantially affect the rights or obligations of non-agency 
     parties. Id.
       CDC did not submit a CRA report to Congress or the 
     Comptroller General on the Mask Requirement. In its response 
     to us, CDC stated the Mask Requirement was not subject to the 
     CRA because it was an emergency action under CDC's regulatory 
     authorities and that any delays could result in serious 
     harms. Response Letter, at 1.


                               Discussion

       The issue here is whether the CDC Mask Requirement is a 
     rule under CRA. Applying the statutory framework of CRA, we 
     first address whether the Mask Requirement meets the 
     definition of a rule under APA. We conclude that it does. 
     Second, we address whether any of the CRA exceptions apply. 
     We conclude they do not. Therefore, we conclude the Mask 
     Requirement is a rule for purposes of CRA.
       CDC considers the Mask Requirement to be an order issued 
     under its regulatory authorities implementing the Public 
     Health Service Act. See Response Letter, at 1-2 (``[t]he mask 
     order is an emergency action taken under 42 C.F.R. 
     Sec. Sec. 70.2, 71.31 (b), and 71.32 (b) . . . implementing 
     regulations of 42 U.S.C. Sec. 264''). Although an agency's 
     characterization should be considered in deciding whether its 
     action is a rule under the APA definition (and whether, for 
     example, it is subject to notice and comment rulemaking 
     requirements), ``[an] agency's own label . . . [is] not 
     dispositive.'' Chamber of Commerce of the U.S. v. OSHA, 636 
     F.2d 464,468 (D.C. Cir. 1980); B-329272, Oct. 19, 2017.
       The APA defines 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. . . .'' 5 U.S.C. 
     Sec. 551(4). By contrast, the APA defines an order to be 
     ``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.'' 5 U.S.C. Sec. 551(6). As we have noted in our 
     prior decisions, these two definitions make rules and orders 
     mutually exclusive categories. See B-332233, Aug. 13, 2020, 
     at 3.
       Here the Mask Requirement meets the APA definition of a 
     rule rather than an order. Regarding the first element of a 
     rule, the Mask Requirement is an agency statement because it 
     is an official document published in the Federal Register by 
     CDC. Mask Requirement at 8025-26. It is of future effect, 
     satisfying the second element, because the order states that 
     it remains in place until rescinded or the public health 
     emergency is terminated. Id. at 8026. Third, it implements 
     and prescribes law or policy as it requires all travelers to 
     wear a mask where previously they were not required to do so. 
     Id. at 8028-29. Thus, the Mask Requirement falls within the 
     APA's definition of rule.
       Conversely, despite its label, the Mask Requirement is not 
     an order for purposes of the APA because it is not the result 
     of an adjudicatory process. See Coalition for Common Sense in 
     Gov't Procurement v. Sec'y for Veterans Affairs, 464 F.3d 
     1306, 1316-17 (Fed. Cir. 2006). As noted previously, an order 
     is defined as ``the whole or a part of a final disposition, 
     whether affirmative, negative, injunctive, or declaratory in 
     form.'' 5 U.S.C. Sec. 551(6). Thus, an order results from an 
     adjudicatory process. See Coalition for Common Sense in Gov't 
     Procurement, 463 F.3d at 1316-17. Here, the Mask Requirement 
     was not the result of an adjudicatory process but a 
     prospective requirement setting process. In its response to 
     us, CDC described its process for drafting the Mask 
     Requirement. ``[It] was drafted and cleared by the CDC 
     program (Division of Global Migration and Quarantine), Center 
     (National Center for Emerging and Zoonotic Infectious 
     Diseases), and CDC's Office of the Director before it was 
     provided to HHS for Departmental review. Following HHS review 
     and clearance, it was provided to OMB.'' Response Letter at 
     2. This is a process used to draft rules, not an adjudicatory 
     proceeding.

[[Page S9208]]

       In support of its position that the agency action here is 
     an order not a rule, CDC asserted that its long-standing 
     regulations permit it to act quickly to prevent the spread of 
     communicable diseases and any delay in issuance of the Mask 
     Requirement ``could result in serious harm.'' Response 
     Letter, at 1. CDC further stated that the order was an 
     emergency action and requiring the order to go through notice 
     and comment before taking effect ``would exacerbate the 
     substantial harm that the order was intended to mitigate.'' 
     Id.
       While CRA does not provide an emergency exception from its 
     procedural requirements to submit rules for congressional 
     review, CRA and APA address an agency's need to take 
     emergency action without delay. Agencies can waive the 
     required delay in effective date requirement when an agency 
     for ``good cause'' finds (and incorporates the finding and a 
     brief statement of reasons in the rule issued) that notice 
     and public procedure are ``impracticable, unnecessary, or 
     contrary to the public interest.'' 5 U.S.C Sec. Sec. 553(b), 
     808(2). Therefore, an agency can provide for a rule to take 
     effect immediately while still complying with the agency's 
     statutory obligation to submit the rule to Congress for 
     review.
       Having determined the Mask Requirement meets the definition 
     of a rule, we must determine if any of the CRA exceptions 
     apply. We conclude they do not. First, it is not a rule of 
     particular applicability as it applies to all travelers using 
     public conveyances and is not limited to specific parties. 
     Mask Requirement, at 8028-29. Second, it does not deal with 
     agency management or personnel but with travelers and 
     conveyance operators. Id. at 8026. Finally, it is not a rule 
     of agency organization, procedure, or practice that does not 
     substantially affect the rights or obligations of non-agency 
     parties as it imposes new requirements on people who are 
     traveling to wear masks while in transit and at 
     transportation hubs. Id. at 8028-29. It also requires 
     operators to only provide service to masked passengers. Id. 
     Thus, no exception applies.


                               Conclusion

       The Mask Requirement is a rule for purposes of CRA because 
     it meets the APA definition of a rule and no CRA exception 
     applies. Accordingly, before it can take effect, the Mask 
     Requirement is subject to the requirement that it be 
     submitted to both Houses of Congress and the Comptroller 
     General for review, which provides Congress a period of 60 
     days in which it may disapprove the rule using special 
     procedures in accordance with the CRA. While CDC asserted the 
     need to act quickly as its justification for not submitting 
     the Mask Requirement for congressional review, there is not 
     an emergency exception under CRA. An agency may, however, 
     invoke the CRA's good cause exception and provide for a rule 
     to take effect immediately while still complying with the 
     agency's statutory obligation to submit the rule to Congress 
     for review. With this decision, we are not taking a position 
     on the policy of imposing a mask requirement or what steps 
     the agency or Congress may take next; our decision only 
     addresses CDC's compliance with CRA's procedures for 
     congressional review.

                                        Edda Emmanuelli Perez,

     General Counsel.

                          ____________________