[Congressional Record Volume 169, Number 99 (Wednesday, June 7, 2023)]
[Senate]
[Pages S1998-S2000]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           GAO OPINION LETTER

  Mr. MARSHALL. Mr. President, I ask unanimous consent that the 
following GAO opinion letter be printed in the Congressional Record:

       Matter of: U.S. Department of Agriculture, Food and 
     Nutrition Service--Applicability of the Congressional Review 
     Act to Food and Nutrition Service Policy Memorandum CRD 01-
     2022, Application of Bostock v. Clayton

[[Page S1999]]

     County to Program Discrimination Complaint Processing--Policy 
     Update
       File: B-334411
       Date: June 5, 2023.
  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: U.S. Department of Agriculture, Food and Nutrition 
         Service--Applicability of the Congressional Review Act to 
         Food and Nutrition Service Policy Memorandum CRD 01-2022, 
         Application of Bostock v. Clayton County to Program 
         Discrimination Complaint Processing--Policy Update.
     File: B-334411.
     Date: June 5, 2023.


                                 DIGEST

       The U.S. Department of Agriculture, Food and Nutrition 
     Service (USDA/FNS) published a memorandum titled Application 
     of Bostock v. Clayton County to Program Discrimination 
     Complaint Processing--Policy Update (Update). GAO received a 
     request for a decision as to whether the Update is a rule for 
     purposes of the Congressional Review Act (CRA). CRA 
     incorporates the Administrative Procedure Act's (APA) 
     definition of a rule and 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 to the Comptroller 
     General. USDA/FNS did not submit a CRA report to Congress or 
     the Comptroller General on the Update.
       The Update announced USDA/FNS's conclusion that the 
     prohibitions against sex discrimination in USDA/FNS-enforced 
     statutes prohibit discrimination on the basis of gender 
     identity and sexual orientation. Based on this conclusion, 
     the Update directed state agencies and program operators to 
     handle complaints alleging discrimination on the basis of 
     gender identity and sexual orientation as complaints of 
     prohibited sex discrimination. We conclude that the Update 
     meets CRA's definition of a rule and no CRA exception 
     applies. Therefore, the Update is subject to CRA's submission 
     requirement.


                                DECISION

       On May 5, 2022, the U.S. Department of Agriculture, Food 
     and Nutrition Service (USDA/FNS) issued a memorandum titled 
     Application of Bostock v. Clayton County to Program 
     Discrimination Complaint Processing--Policy Update (Update), 
     available at https://www.fns.usda.gov/cr/crd-01-2022 (last 
     visited Apr. 14, 2023). We received a request for a decision 
     as to whether the Update is a rule for purposes of the 
     Congressional Review Act (CRA). Letter from Senators Roger 
     Marshall, Marsha Blackburn, John Barrasso, Tom Cotton, and 
     James Lankford, to the Comptroller General (June 16, 2022). 
     As discussed below, we conclude that the Update is a rule 
     subject to CRA's submission requirement.
       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, GAO-06-1064SP (Washington, D.C.: 
     Sept. 2006) (Procedures), available at https://www.gao.gov/
products/gao-06-1064sp. Accordingly, we reached out to USDA/
     FNS to obtain the agency's legal views. Letter from Assistant 
     General Counsel, GAO, to General Counsel, USDA (July 13, 
     2022). Although USDA/FNS did not provide a substantive 
     response with its legal views due to ongoing litigation, we 
     determined we have sufficient information to issue a decision 
     on this matter. Letter from General Counsel, USDA, to 
     Assistant General Counsel, GAO (Aug. 4, 2022) (First Response 
     Letter); Letter from General Counsel, USDA, to Assistant 
     General Counsel, GAO (Oct. 20, 2022) (Second Response 
     Letter).


                               BACKGROUND

     Prohibitions Against Sex Discrimination in USDA/FNS Programs
       USDA/FNS administers federal programs to increase food 
     security and reduce hunger among children and low-income 
     people. USDA/FNS, Our Agency, About FNS, available at https:/
     /www.fns.usda.gov (last visited Apr. 10, 2023). Laws such as 
     Title IX of the Education Amendments of 1972, as amended, 20 
     U.S.C. Sec. 1681-1688, and the Food and Nutrition Act of 
     2008, as amended, 7 U.S.C. Sec. Sec. 2011 et seq., include 
     prohibitions against sex discrimination. Update at 1. USDA/
     FNS enforces those prohibitions. Id. Moreover, where USDA/FNS 
     has delegated certain program responsibilities to states and 
     other nonfederal entities, these states and entities may 
     process complaints alleging sex discrimination. See, e.g., 7 
     C.F.R. Sec. 271.4 (assigning states the responsibility to 
     administer the Supplemental Nutrition Assistance Program 
     (SNAP)), Sec. 272.6 (states may process SNAP applicants' 
     discrimination complaints).
       In the Update, USDA/FNS announced that it had reevaluated 
     the prohibitions on sex discrimination ``in all FNS 
     programs'' due to the Supreme Court's decision in Bostock v. 
     Clayton County, 590 U.S. __, 140 S. Ct. 1731 (2020). Update 
     at 1, 2. The Supreme Court in Bostock held that the 
     prohibition in Title VII of the Civil Rights Act of 1964 
     against sex discrimination in employment includes a 
     prohibition against discrimination on the basis of gender 
     identity and sexual orientation. Bostock, at 1741. ``In light 
     of Bostock,'' USDA/FNS explained in the Update that 
     ``discrimination based on gender identity and sexual 
     orientation can [also] constitute prohibited sex 
     discrimination under Title IX [of the Education Amendments of 
     1972] and the Food and Nutrition Act.'' Update at 2. With 
     respect to Title IX, USDA/FNS indicated that it was 
     ``adopting'' recent analyses by the Department of Justice 
     and the Department of Education, both of which had applied 
     Bostock to find that Title IX includes a prohibition 
     against discrimination based on gender identity and sexual 
     orientation. With respect to the Food and Nutrition Act, 
     USDA/FNS said the Act's nondiscrimination provision is 
     ``sufficiently similar'' to Title VII's nondiscrimination 
     language as to make Bostock's holding applicable. Id.
       Based on the above determinations, the Update directed all 
     ``State agencies and program operators'' who administer USDA/
     FNS programs to ``expeditiously review their program 
     discrimination complaint procedures'' and ``make any changes 
     necessary to ensure complaints alleging discrimination on the 
     basis of gender identity and sexual orientation are processed 
     and evaluated as [sex discrimination] complaints.'' Update at 
     3. The Update further instructed state agencies to 
     ``distribute [the Update] to local agencies, Program 
     Operators and Sponsors, and all other subrecipients of 
     Federal financial assistance.'' Id. Finally, the Update 
     ``advised'' state agencies and program operators ``that the 
     interpretation outlined in [the Update] does not determine 
     the outcome in any particular case, which will depend on the 
     specific facts and circumstances of that case.'' Id.
     The Congressional Review Act (CRA)
       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. CRA 
     allows Congress to review and disapprove federal agency rules 
     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 a 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). 
     However, 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/FNS did not submit a CRA report to Congress or the 
     Comptroller General on the Update. In its first response to 
     GAO, USDA/FNS asked us to ``withdraw [our] request for legal 
     information'' because of two pending lawsuits concerning the 
     Update. First Response Letter, at 1. When GAO informed USDA 
     that those lawsuits did not prevent us from carrying out our 
     responsibility to assist Congress, and that we would proceed 
     to issue a legal decision, USDA nevertheless ``respectfully 
     decline[d] to comment'' on the questions we posed. Second 
     Response Letter, at 1-2. Although USDA/FNS did not provide a 
     substantive response to GAO's inquiries concerning this 
     matter, we reviewed filings in the lawsuits identified in the 
     agency's First Response Letter to determine if the agency or 
     other parties raised arguments concerning the applicability 
     of CRA. We found no such arguments. Based on the factual 
     information and legal issues we reviewed, we determined we 
     have sufficient information to issue a decision on this 
     matter.


                               DISCUSSION

       An agency action is subject to CRA if it meets the APA's 
     definition of a rule and no CRA exception applies. Because 
     the Update meets the APA's definition of a rule, and because 
     no CRA exception applies, the Update is subject to CRA's 
     submission requirement.
       The Update meets the APA definition of a rule. It is an 
     agency statement issued by the FNS/Civil Rights Division to 
     the Regional and State Directors of all Food and Nutrition 
     Service programs. Update at 1. It has future effect because 
     it directs state agencies and program operators to ``make any 
     changes necessary'' to their complaint-handling processes and 
     ``distribute this memorandum'' to additional personnel, 
     among other things. Id. at 3. It prescribes policy for 
     USDA/FNS, and all others implementing USDA/FNS programs, 
     by instructing ``that discrimination based on gender 
     identity and sexual orientation can constitute prohibited 
     sex discrimination under Title IX and the Food and 
     Nutrition Act. Id. at 2.
       Additionally, none of CRA's exceptions apply:
       First, the Update is not a rule of particular 
     applicability. Rules of particular applicability are those 
     addressed to specific, identified entities that address 
     actions that may or may not be taken, in light of the facts 
     and circumstances. B-334221, Feb. 9, 2023; B-333732, July 28, 
     2022. Here, by contrast, the Update is addressed to directors 
     in ``all regions'' and ``all states,'' and instructs them

[[Page S2000]]

     to distribute the Update further to ``local agencies, Program 
     Operators and Sponsors, and all other subrecipients of 
     Federal financial assistance.'' Update at 1, 3. USDA/FNS 
     intended the Update to reach everyone implementing FNS 
     programs and instructed that it did not ``determine the 
     outcome in any particular case.'' Id. at 3. Thus, the Update 
     has general applicability. See, e.g., B-333732, July 28, 2022 
     (explaining that USDA Thrifty Food Plan updates addressed to 
     ``all families'' lacked particular applicability).
       Second, the Update is not a rule relating to agency 
     management or personnel. ``A rule falls within the CRA 
     exception for rules relating to agency management or 
     personnel if it relates to purely internal agency matters, 
     with no effect on non-agency parties.'' B-334221, Feb. 9, 
     2023. Here, the Update relates primarily to non-agency 
     parties. As discussed above, it is addressed to ``all state 
     directors'' of USDA/FNS programs, among others, and it 
     directs further distribution to other nonfederal entities. 
     Update at 1. The Update's stated purpose is to ``provide 
     direction to'' such non-agency parties, to ensure their 
     procedures comport with a USDA/FNS policy. Id. That policy, 
     moreover, concerns the rights of private households to have 
     their complaints of discrimination based on gender identity 
     and sexual orientation processed and evaluated as complaints 
     of discrimination based on sex. Id. at 3. Thus, the Update is 
     not a rule relating to agency management or personnel. See B-
     333732, July 28, 2022 (USDA update to Thrifty Food Plan did 
     not qualify for CRA's second exception because it addressed 
     ``the amount of SNAP benefits for qualifying families''), B-
     333501, Dec. 14, 2021 (Centers for Disease Control and 
     Prevention (CDC) mask requirement did not qualify for CRA's 
     second exception because it addressed public travelers and 
     conveyance operators).
       Third, and finally, the Update has a substantial impact on 
     the rights and obligations of non-agency parties. We have 
     recognized that agencies may meet the third CRA exception 
     when implementing ``new internal procedures'' to ensure 
     compliance with an ``existing statutory obligation.'' B-
     330190, Dec. 19, 2018. Thus, in B-330190, we considered a 
     Department of Justice (DOJ) memorandum that adopted a zero 
     tolerance policy with regard to prosecuting certain 
     individuals who violated 8 U.S.C. Sec. 1325(a) by entering 
     the country illegally. Id. We found that DOJ's memo did not 
     ``alter individual rights'' because there was no underlying 
     change in the legal rights of individuals crossing the 
     border. Id. Here, the Update purports merely to ``clarify'' 
     existing requirements of anti-discrimination provisions. 
     Update, at 1. However, unlike in B-330190, the Update 
     forwards a novel interpretation of the law with respect to 
     USDA/FNS-enforced statutes.
       Prior to Bostock, sex discrimination under Title VII of the 
     Civil Rights Act of 1964 was not universally understood to 
     include discrimination on the basis of gender identity and 
     sexual orientation; rather, the Supreme Court's decision 
     established that understanding as a matter of law. Bostock, 
     at 1741, 1754. Importantly, the Update itself is not even a 
     direct application of Bostock, but an extension of its 
     holding (in the Title VII context) to the context of USDA/
     FNS-enforced statutes. The Update explains how USDA/FNS 
     ``determined'' that discrimination on the basis of gender 
     identity and sexual orientation can constitute sex 
     discrimination under the statutes USDA/FNS enforces, and the 
     implication is that USDA/FNS had not reached or announced 
     that determination previously. Update at 3.
       The Update does not qualify for CRA's third exception, as 
     it creates new policy and, in doing so, has a substantial 
     impact on the rights and obligations of non-agency parties. 
     See B-333732 at 5 (USDA Thrifty Food Plan update had 
     substantial impact by ``granting increased benefit 
     allotments'' to families); B-333501 at 5 (CDC mask 
     requirement had substantial impact by ``impos[ing] new 
     requirements on people who are traveling to wear masks''). 
     Namely, it expands the obligations of state agencies and 
     program operators by requiring them to ``review'' their 
     discrimination complaint procedures and ``make any changes 
     necessary.'' Update at 3. The Update also expands the rights 
     of FNS benefit applicants by requiring that an applicant's 
     complaint alleging discrimination on the basis of gender 
     identity and/or sexual orientation be processed and evaluated 
     as a complaint of discrimination based on sex, which was not 
     required prior to the Update.


                               CONCLUSION

       The Update is a rule for CRA purposes because it meets the 
     APA's definition of a rule and no CRA exception applies. 
     Therefore, the Update is subject to CRA's requirement that it 
     be submitted to Congress before it can take effect.
                                            Edda Emmanuelli Perez,
     General Counsel.

                          ____________________