[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

[[Page S4036]]

     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.

                          ____________________