[Congressional Record Volume 171, Number 213 (Wednesday, December 17, 2025)]
[Senate]
[Pages S8828-S8829]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S. GOVERNMENT ACCOUNTABILITY OFFICE OPINION LETTER
Mr. BENNET. Mr. President, I ask unanimous consent to have printed in
the Record the GAO opinion letter dated December 16, 2025.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Decision
Matter of: U.S. Department of Commerce, National
Telecommunications and Information Administration--
Applicability of the Congressional Review Act to
Broadband Equity, Access, and Deployment Program
Restructuring Policy Notice
File: B-337604
Date: December 16, 2025
DIGEST
On June 6, 2025, the U.S. Department of Commerce, National
Telecommunications and Information Administration published a
notice entitled, Broadband Equity, Access, and Deployment
(BEAD) Program: BEAD Restructuring Policy Notice (Policy
Notice). The Policy Notice modifies and replaces certain
requirements outlined in the May 12, 2022, Notice of Funding
Opportunity for the BEAD Program--a grant program to provide
high-speed broadband access throughout the United States and
several territories.
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. CRA adopts the definition of ``rule''
under the Administrative Procedure Act (APA) but excludes
certain categories of rules from coverage. We conclude that
the Policy Notice meets the APA definition of a rule, and no
CRA exception applies. Therefore, the Policy Notice is a rule
subject to CRA's submission requirements.
DECISION
On June 6, 2025, the U.S. Department of Commerce
(Commerce), National Telecommunications and Information
Administration (NTIA) published a notice entitled, Broadband
Equity, Access, and Deployment (BEAD) Program: BEAD
Restructuring Policy Notice (Policy Notice). The Policy
Notice modifies and replaces certain requirements outlined in
the May 12, 2022, Notice of Funding Opportunity (NOFO) for
the BEAD Program--a grant program to provide high-speed
broadband access throughout the United States and several
territories. We received a request for a decision as to
whether the Policy Notice is a rule for purposes of the
Congressional Review Act (CRA). As discussed below, we
conclude that the Policy Notice is a rule subject to CRA's
submission requirements.
Our practice when rendering decisions is to contact the
relevant agencies to obtain factual information and their
legal views on the subject of the request. Accordingly, we
reached out to Commerce on June 30, 2025. Although Commerce
did not provide a substantive response with its legal views,
we determined we have sufficient information to issue a
decision on this matter.
BACKGROUND
Broadband Equity, Access, and Deployment (BEAD) Program
The Infrastructure, Investment, and Jobs Act (IIJA)
established the BEAD Program, and appropriated $42.45 billion
for it. The BEAD Program is a grant program administered by
NTIA that funds high-speed broadband access initiatives, with
particular focus on unserved and underserved locations. Funds
for the BEAD Program are allocated by formulas in IIJA to
Eligible Entities, which include all 50 states, the District
of Columbia, Puerto Rico, American Samoa, Guam, the U.S.
Virgin Islands, and the Northern Mariana Islands. In advance
of funds being distributed to Eligible Entities, the
Assistant Secretary of Commerce for Communications and
Information (Assistant Secretary) must approve each Eligible
Entity's letter of intent, initial proposal, or final
proposal.
IIJA required the Assistant Secretary to issue a NOFO for
the BEAD Program within 180 days of IIJA's enactment. NTIA
published the BEAD NOFO on May 12, 2022. The BEAD NOFO
explains the BEAD Program structure; provides information on
amounts made available to Eligible Entities under the
program; describes the grant application and review process;
and outlines the eligibility requirements for the program.
The BEAD NOFO also imposes several obligations on Eligible
Entities and subgrantees, such as coordinating with political
subdivisions and Tribal governments; targeting engagement
efforts at underrepresented communities; giving priority to
projects based in part on a demonstrated record of and plans
to be in compliance with federal labor and employment laws;
and demonstrating that the Eligible Entities have
sufficiently accounted for current and future weather- and
climate-related risks to new infrastructure projects.
Finally, the BEAD NOFO clarifies some technical aspects of
the BEAD Program. For example, IIJA instructs that when
awarding subgrants using BEAD Program funds, Eligible
Entities shall prioritize funding for deployment of
infrastructure for ``priority broadband projects,'' which the
BEAD NOFO subsequently defines as ``those that use end-to-end
fiber-optic architecture,'' rather than other technologies.
BEAD Restructuring Policy Notice
On June 6, 2025, NTIA published a Policy Notice that
``modifies and replaces certain requirements outlined in the
BEAD [NOFO].'' The Policy Notice states that it ``eliminates
burdensome and non-statutory requirements contained in the
NOFO published on May 12, 2022'' and prohibits Eligible
Entities ``from imposing any of the obligations removed by
this Policy Notice on subgrantees as part of the BEAD
Program.'' According to the Policy Notice, ``Each Eligible
Entity must comply with this Policy Notice to gain approval
of its Final Proposal from the Assistant Secretary.'' The
Policy Notice also rescinded two previously issued Policy
Notices for the BEAD Program.
The Policy Notice removed several requirements imposed on
Eligible Entities and subgrantees in the BEAD NOFO, such as
requirements related to labor, employment, and workforce
development; climate change; open access and net neutrality;
local coordination and stakeholder engagement; and low-cost
service options. The Policy Notice also amended some of the
technological requirements of the BEAD Program. For example,
the Policy Notice ``eliminates the `Fiber Preference' section
of the BEAD NOFO and permits Eligible Entities to select from
all qualifying technologies,'' rather than limiting priority
broadband projects to those using end-to-end fiber.
Furthermore, the Policy Notice requires Eligible Entities
to conduct an additional subgrantee selection round, which
requires Eligible Entities to rescind all provisional
subaward selections. The Policy Notice also revises the
scoring rubric that Eligible Entities are to use to evaluate
subgrantee applications, placing particular emphasis ``on
minimizing the cost of deployment under the BEAD Program.''
Finally, the Policy Notice identifies other changes to the
administration of the BEAD Program, including changes related
to optimizing program locations, funding for allowable non-
deployment purposes, and expedited permitting under the
National Environmental Policy Act, 42 U.S.C. Sec. Sec. 4321-
4347.
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.
The report must contain a copy of the rule, ``a concise
general statement relating to the rule,'' and the rule's
proposed effective date. CRA allows Congress to review and
disapprove of federal agency rules for a period of 60 days
using special procedures. If a resolution of disapproval is
enacted, then the new rule has no force or effect.
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.'' 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.
NTIA did not submit a CRA report to Congress or the
Comptroller General on the BEAD Policy Notice.
DISCUSSION
At issue here is whether the Policy Notice meets CRA's
definition of a rule, which adopts APA's definition of a
rule, with three exceptions. As explained below, we conclude
that it does. In addition, we conclude that the Policy Notice
does not fall within any CRA exceptions. Therefore, the
Policy Notice is a rule subject to CRA's submission
requirements.
The Policy Notice is a Rule Under APA
Applying APA's definition of ``rule,'' the Policy Notice
meets all of the required elements. First, the Policy Notice
is an agency statement because it was issued by NTIA, a
federal agency.
[[Page S8829]]
Second, the Policy Notice is of future effect. An agency
action of future effect is one ``concerned with policy
considerations for the future rather than the evaluation of
past or present conduct.'' The Policy Notice concerns the
administration of the BEAD Program going forward and outlines
changes that Eligible Entities and subgrantees will be
required to make to their applications for the program.
Therefore, the Policy Notice has future effect.
Third, the Policy Notice implements, interprets, and
prescribes law or policy. An agency action implements,
interprets, or prescribes law or policy When the action
creates new regulations, changes regulatory requirements or
official policy, or when it alters how the agency will
exercise its discretion, among other things. The Policy
Notice here implements the requirements of the BEAD Program
outlined in IIJA by describing how NTIA will administer the
program going forward and outlining the criteria Eligible
Entities and subgrantees seeking funding under the program
must meet. Furthermore, the Policy Notice prescribes policy
by imposing new requirements on Eligible Entities. For
example, it states that Eligible Entities ``shall eliminate
the following non-statutory requirements from BEAD
application scoring, subgrantee agreements, and subgrantee
reporting requirements[,]'' and that ``Eligible Entities are
hereby prohibited from imposing any of the obligations
removed by this Policy Notice on subgrantees as part of the
BEAD Program.'' In addition, the Policy Notice alters the
requirements for the prioritization of projects under the
program by providing a new definition of a ``priority
broadband project'' to include technologies other than end-
to-end fiber, which similarly implements and prescribes law
or policy.
Our conclusion here is consistent with our previous
decisions finding that agency actions implement, interpret,
or prescribe law or policy when they define procedures by
which potential recipients may apply for grant programs, and
describe the process by which the agency will evaluate those
applications. For example, in B-335488, Oct. 18, 2023, we
considered whether a U.S. Department of Transportation (DOT)
NOFO, which ``outlined the precise eligibility and selection
criteria for each program, as well as the types of projects
eligible to receive DOT funding under each one'' and changed
the criteria used to evaluate applicants and make award
decisions from a previous NOFO--including how certain
criteria were rated--was a rule subject to CRA. We concluded
that the DOT NOFO for three IIJA grant programs implemented
or prescribed law or policy and described agency procedures,
as it described the process by which eligible entities may
apply for three grant programs and defined how DOT would
evaluate these applications, among other things. Similarly
here, the Policy Notice alters the criteria used to evaluate
applications under the program and changes program
requirements, as established by the BEAD NOFO. As a result,
the Policy Notice also satisfies this element of the APA
definition.
CRA Exceptions
We must next determine whether any of CRA's three
exceptions apply. CRA provides for three types of rules that
are not subject to its requirements: (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.
(1) Rule of Particular Applicability
The Policy Notice is a rule of general applicability,
rather than particular applicability. Rules of particular
applicability are rules addressed to specific, identified
persons or entities and determine actions that person or
entity may or may not take, considering facts and
circumstances specific to those persons or entities. Here,
the Policy Notice does not apply to a particular entity.
Instead, the Policy Notice applies to all Eligible Entities
under the BEAD Program--all 50 states, the District of
Columbia, and several territories--and notes that ``[e]ach
Eligible Entity must comply with this Policy Notice to gain
approval of its Final Proposal from the Assistant
Secretary.'' Therefore, the Policy Notice is a rule of
general applicability, rather than particular applicability.
(2) Rule of Agency Management or Personnel
The Policy Notice is not a rule of agency management or
personnel. We have previously held that rules that fall into
this category relate to purely internal matters. Because the
Policy Notice is concerned with the administration of the
BEAD Program, rather than management of NTIA or its
personnel, it does not meet the second exception.
(3) Rule of Agency Organization, Procedure, or Practice with
No Substantial Effect on Non-Agency Parties
Lastly, the Policy Notice is not a rule of agency
organization, procedure, or practice that does not
substantially affect the rights or obligations of non-agency
parties. We have previously explained that this exception was
modeled on the APA exception to notice-and-comment rulemaking
requirements for ``rules of agency organization, procedure,
or practice.'' The purpose of the APA exception is to ensure
``that agencies retain latitude in organizing their internal
operations,'' so long as such rules do not have a substantial
impact on non-agency parties. Following this interpretation
in the CRA context, we have only applied CRA's third
exception to rules that primarily focus on the internal
operations of an agency. For instance, in B-329926, Sept. 10,
2018, we found that updates to a Social Security
Administration (SSA) hearings manual governing SSA
adjudicators' use of information from the internet qualified
as a rule of agency organization, procedure, or practice.
There, the manual outlined procedures for SSA employees to
follow in processing and adjudicating benefits claims.
Because the manual was directed to and binding only on SSA
officials without imposing new burdens on claimants, we
concluded that the manual met the third exception.
However, rules that are directed at and primarily concerned
with the behavior of non-agency parties are not rules of
agency organization, procedure, or practice. Here, the Policy
Statement is primarily concerned with the behavior of
Eligible Entities and subgrantees, rather than with the
internal operations of NTIA itself. The Policy Notice
prescribes actions program participants should and should not
take in carrying out the BEAD Program. Therefore, it is not a
rule of agency organization, procedure, or practice.
Moreover, the Policy Notice cannot fall under this
exception because it also substantially affects the rights or
obligations of non-agency parties. In the federal funding
context, we have previously determined that rules amending or
clarifying the requirements of existing financial assistance
programs for non-agency parties substantially affect those
parties' rights or obligations. Where a rule modifies an
existing financial assistance program through actions such as
defining eligibility requirements and selection criteria, it
has a substantial effect on non-agency parties who
participate in the program. Here, the Policy Notice modifies
and clarifies how NTIA will administer the BEAD Program.
Among other things, the Policy Notice eliminates certain
requirements previously imposed on Eligible Entities and
subgrantees through the BEAD NOFO; alters the criteria by
which NTIA will evaluate applications; requires Eligible
Entities to conduct an additional round of subgrantee
selection after rescinding aII preliminary and provisional
subaward selections; and modifies the agency's interpretation
of statutory terms, such as ``priority broadband project.''
By changing the manner in which the BEAD Program is
administered, these actions substantially affect the rights
or obligations of non-agency parties participating in the
BEAD Program. Therefore, the Policy Notice cannot fall into
CRA's third exception.
CONCLUSION
The Policy Notice is a rule for purposes of CRA because it
meets the definition of a rule under APA and no CRA exception
applies. Therefore, the Policy Notice is subject to CRA's
requirement that it be submitted to Congress and the
Comptroller General before it can take effect.
Edda Emmanuelli Perez,
General Counsel.
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