[Congressional Record Volume 168, Number 131 (Thursday, August 4, 2022)]
[Senate]
[Pages S4034-S4036]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THRIFTY FLOOD PLAN
Mr. BOOZMAN. Mr. President, I ask unanimous consent that the
following letter from the Government Accountability Office, GAO, be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Government Accountability Office,
Washington, DC.
Decision
Matter of: United States Department of Agriculture--
Applicability of the Congressional Review Act to the 2021
Updates to the Thrifty Food Plan
File: B-33732
Date: July 28, 2022
DIGEST
The United States Department of Agriculture (USDA) issued a
document entitled Thrifty Food Plan, 2021 (2021 TFP). The
2021 TFP updates the market baskets used to determine the
value of Supplemental Nutrition Assistance Program (SNAP)
benefits to purchase food from retail stores.
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 the 2021 TFP meets the definition of a rule under
the CRA and no CRA exception applies. Therefore, the 2021 TFP
is subject to the requirement that it be submitted to
Congress.
DECISION
On August 16, 2021, the United States Department of
Agriculture (USDA) issued a
[[Page S4035]]
document entitled Thrifty Food Plan, 2021 (2021 TFP). USDA,
Thrifty Food Plan, 2021 (August 2021), available at https://
FNS. usda.gov/TFP (last visited Jul. 12, 2022). We received a
request for a decision as to whether the 2021 TFP is a rule
for purposes of the Congressional Review Act (CRA). Letter
from Senator Tillis to the Comptroller General (Oct. 27,
2021). For the reasons discussed below, we conclude that the
2021 TFP is a rule and thus subject to the submission
requirement of CRA.
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 USDA to obtain the
agency's legal views. Letter from Managing Associate General
Counsel, GAO, to General Counsel, USDA (Dec. 15, 2021 ). We
received USDA's response on February 11, 2022. Letter from
Associate General Counsel, USDA, to Managing Associate
General Counsel, GAO (Feb. 11, 2022) (Response Letter).
BACKGROUND
Thrifty Food Plan
The Thrifty Food Plan is defined by the Food and Nutrition
Act of 2008 as a diet required to feed a family of four
persons. See 7 U.S.C. 2012(u). The Act uses the cost of this
diet as the basis for allotments to households regardless of
their actual size. Id. These allotments take the form of
Supplemental Nutrition Assistance Program (SNAP) benefits to
purchase food from retail stores. See 7 U.S.C. Sec. 2013. In
order for a household to qualify for SNAP benefits its gross
income cannot exceed the poverty line. See 7 U.S.C.
Sec. 2014(c).
The 2018 Farm Bill amended the Thrifty Food Plan to require
USDA to ``re-evaluate and publish the market baskets of the
thrifty food plan based on current food prices, food
composition data, consumption patterns, and dietary
guidance'' by 2022 and at 5-year intervals thereafter.
Agriculture Improvement Act of 2018 (2018 Farm Bill), Pub. L.
No. 115-334, title IV, Sec. 4002, 132 Stat. 4490, 4624 (Dec.
20, 2018). On August 16, 2021, USDA published the 2021 TFP.
USDA, Thrifty Food Plan, 2021 (August 2021), available at
https://FNS.usda.gov/TFP (last visited Jul. 12, 2022). The
2021 TFP is the USDA update to the TFP market baskets
required by the 2018 Farm Bill.
The 2021 TFP describes the approach and methods used in
reevaluating the Thrifty Food Plan. Prior to the 2021
reevaluation, the market basket prices were last updated in
2006. 2021 TFP at 30. The result of the 2021 reevaluation is
that the monthly cost of a market basket for the reference
family of four is $835.57. 2021 TFP at 34. This represents an
increase of $145.19 (in 2021 dollars) from the previous
market basket price. See id. at 34-35. The changes to the
maximum SNAP benefit allotments based on the 2021 TFP were
effective beginning October 1, 2021. 2021 TFP at 51.
The 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. Sec. 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. An agency
can find for good cause that notice and public procedure are
impracticable, unnecessary, or contrary to the public
interest and the rule will then take effect at a time the
agency determines. 5 U.S.C. Sec. 808(2). 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. Sec. 801 (a)(1)(C). CRA allows
Congress to review and disapprove rules issued by federal
agencies for a period of 60 days using special procedures.
See 5 U.S.C. Sec. 802. If a resolution of disapproval is
enacted, then the new rule has no force or effect. 5 U.S.C.
Sec. 801 (b)(1).
CRA adopts the definition of rule under the Administrative
Procedure Act (APA), 5 U.S.C. 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. Sec. 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.
USDA did not submit a CRA report to Congress or the
Comptroller General on the 2021 TFP. In its response to us,
USDA stated the 2021 TFP was not subject to CRA because it
was not a rule within the meaning of the APA or CRA. Response
Letter, at 3-4. USDA also stated that it met the good cause
exception under the CRA, and, thus, was not subject to the
CRA's submission requirements. See id. at 7-8. For the
reasons explained below, we conclude that the 2021 TFP is a
rule under the CRA, does not meet any of the exceptions that
would exclude the rule from coverage, and is, therefore,
subject to the submission requirement of CRA.
ANALYSIS
To determine whether the 2021 TFP is a rule subject to
review under CRA, we first address whether the 2021 TFP meets
the APA definition of a rule. As explained below, we conclude
that it does. The next step, then, is to determine whether
any of the CRA exceptions apply. We conclude that they do
not.
The 2021 TFP meets the APA definition of a rule upon which
the CRA relies. First, the 2021 TFP is an agency statement as
it was issued by USDA to update market basket prices that
were last revised in 2006. See 2021 TFP at 1. Second, the
2021 TFP is of future effect, as it provides guidance for new
market basket prices on which SNAP benefits will be based
going forward, effective October 1, 2021. Id. at 51. See B-
316048, Apr. 17, 2008 (finding that an agency action was of
future effect because the action was prospective in nature
since it was concerned with policy considerations for the
future rather than the evaluation of past or present
conduct). Finally, the 2021 TFP is designed to implement,
interpret, or prescribe law or policy as it implements the
new market baskets as required by the Food and Nutrition Act
of 2008 and the 2018 Farm Bill. 2021 TFP at 4-6.
In its Response Letter, USDA asserts the 2021 TFP is exempt
from the APA's rule making provisions because it relates to
agency management and benefits, and, consequently, it is not
a rule. Response Letter at 4. We disagree with this
rationale. Specifically, USDA notes that the APA requires
notice and comment for all rules ``except to the extent
that there is involved . . . a matter relating to agency
management or personnel or to public property, loans,
grants, benefits, or contracts.'' [Emphasis removed.]
Response Letter, at 4 (quoting 5 U.S.C. 553(a)(2)). USDA
argues that ``evaluating market baskets based on current
food prices is a matter relating to `agency management' of
[ ] SNAP and relates to SNAP `benefits.' '' Response
Letter, at 4. However, the language USDA cites in 5 U.S.C.
553(a)(2) pertains to an exception to the APA's rule
making process, not to the definition of a rule. Even
assuming the 2021 TFP is exempt from the APA's notice and
comment requirement, that does not mean it is not a rule
as defined by 5 U.S.C. 551(4). See B-323772, Sept. 4, 2012
(noting the CRA is intended to include within its purview,
almost all rules that an agency issues, not only those
that must be promulgated according to the APA's notice and
comment requirements). It should also be noted that 7
U.S.C. Sec. 2013(c) specifically directs USDA to
promulgate regulations related to SNAP ``in accordance
with the procedures set forth in section 553 of title 5.''
As discussed, the 2021 TFP is an agency statement of
future effect designed to implement policy, and,
therefore, meets the definition of a rule.
USDA contends that Congress did not require the 2021 TFP to
be issued as a rule because Congress did not specifically
require the 2021 TFP to be subject to CRA. Response Letter,
at 5. We disagree with this interpretation of CRA. We conduct
our analysis under CRA which requires all rules to follow the
procedures outlined in 5 U.S.C. Sec. 801. All rules are
subject to the procedures required by CRA, whether or not
Congress specifically requires it, before they can take
effect. 5 U.S.C. Sec. 801.
USDA also argues that Congress had constructive notice that
the 2021 TFP would increase SNAP benefits and, as a result,
USDA was not required to provide formal CRA notice to
Congress. Response Letter, at 5-7. However, constructive
notice is not an exception to CRA notice procedures. As
discussed above, CRA is a method of congressional oversight
of agency rulemaking. CRA requires agencies to submit a
report to Congress about the rule. 5 U.S.C.
Sec. 801(a)(1)(A). The submission of this report initiates
the congressional review process which can lead to Congress
disapproving a rule. 5 U.S.C. Sec. 801 (b)(1). It is the
report that triggers the CRA review process. As a result,
constructive notice of a rule is not the same as submitting a
formal report as required by CRA. While there are exceptions
for waiving a delay in the effective date of a rule, 5 U.S.C.
Sec. 808, there are no exceptions for submitting a report.
Having concluded that the 2021 TFP meets the APA definition
of a rule, we now turn to whether any of the three CRA
exceptions apply. We also address USDA's argument that the
good cause exception provides an exemption from the CRA's
submission requirement. As explained below, we conclude they
do not.
First, the 2021 TFP is not a rule of particular
applicability. Rules of particular applicability are
addressed to specific, identified entities. See
Administrative Conference of the United States, Miscellaneous
Statements, 39 Fed. Reg. 4846, 4849 (Feb. 7, 1974)
(explaining that a rule of general applicability is one with
an open class but a rule of particular applicability is
limited to those named). The 2021 TFP applies to all families
whose income falls below the poverty line and is not
addressed to specific, identified entities. Therefore, it is
a rule of general applicability and not a rule of particular
applicability.
Second, this is not a rule relating to agency management or
personnel. A rule relates to agency management or personnel
if it applies to agency employees and not to outside parties.
See e.g. B-331324, Oct. 22, 2019 (determining that 5 U.S.C.
Sec. 804(3)(b) does not apply when the rule deals with
actions a bank should take and not agency management or
personnel). The 2021 TFP deals with the
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amount of SNAP benefits for qualifying families and, the
market basket costs in the 2021 TFP apply broadly to the
contiguous 48 states and the District of Columbia.
Finally, the 2021 TFP substantially impacts the rights of
non-agency parties because it has an effect on qualifying
families by granting increased benefit allotments designed
for them to obtain a more nutritious diet.
USDA contends the 2021 TFP meets the good cause exception
under the CRA, and, therefore, USDA was not required to
follow the CRA's submission requirements. Response Letter, at
7-8. In its response USDA stated that good cause existed to
issue the 2021 TFP with an effective date in August 2021. Id.
at 8. USDA further stated that this excepted it from carrying
out formal CRA notice before the effective date. 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. Asserting a good cause exception does not serve to
waive the CRA's submission requirements all together.
Notably, the 2021 TFP did not incorporate a finding or
statement of the reasons why there is good cause for an
exception to the CRA's procedural rules to submit the 2021
TFP for congressional review, nor did the 2021 TFP include an
immediate effective date. Therefore, USDA did not properly
apply the good cause exception.
Thus, we conclude that none of the three exceptions that
would exclude the rule from CRA coverage, or the good cause
exception apply, and the 2021 TFP is subject to the
submission requirement of CRA.
CONCLUSION
The 2021 TFP is a rule for purposes of CRA because it meets
the APA definition of a rule and no CRA exception applies.
Therefore, even if exempt from the APA notice-and-comment
requirements, the 2021 TFP is subject to the CRA requirement
that it be submitted to Congress before it can take effect.
Edda Emmanuelli Perez,
General Counsel.
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