Subject: U.S. Department of Agriculture—Congressional Review Act Act 2021 Food Plan Update
The United States Department of Agriculture (USDA) has released a document titled Thrifty Food Plan, 2021 (2021 TFP). TFP 2021 updates the market basket used to determine the value of Supplemental Nutrition Assistance Program (SNAP) benefits to purchase food at retail stores.
The Congressional Review Act (CRA) requires that before the rule goes into effect, the agency must submit the rule to both the House of Representatives and the Senate as well as the Comptroller General, and provides procedures for re- congressional review where Congress can veto regulations. . We conclude the 2021 TFP meets the definition of the rule under the CRA and no CRA exception applies. Therefore, the 2021 TFP is subject to the requirements to be submitted to Congress.
On August 16, 2021, the United States Department of Agriculture (USDA) released a document titled 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 determination as to whether the 2021 TFP is a statute for purposes of the Congressional Review Act (CRA). Letter from Senator Tillis to Comptroller General (Oct. 27, 2021). For the reasons discussed below, we conclude that the 2021 TFP is legal and therefore subject to submission of CRA requirements.
Our practice when making a decision is to contact the relevant authorities to obtain their legal views on the subject of the application. GAO, Methods and Procedures for Decisions and Legal Opinions, GAO-06-1064SP (Washington, D.C.: September 2006), available at https://www.gao.gov/products/gao-06-1064sp. Therefore, we contacted the USDA to get the agency’s legal perspective. Letter from the Deputy General Counsel for Management, GAO, to the General Counsel, USDA (Dec. 15, 2021). We received USDA’s response on February 11, 2022. Letter from Associate General Counsel, USDA, to Management Associate General Counsel, GAO (Feb. 11, 2022) (Response Letter).
The Thrifty Meal Plan is defined by the Food and Nutrition Act 2008 as food required to feed a family of four. See 7 U.S.C. § 2012(u). The law uses the cost of this food as the basis for allocating households regardless of actual size. Identification. This appropriation is in the form of Supplemental Nutrition Assistance Program (SNAP) assistance to purchase food at retail stores. See 7 U.S.C. § 2013. In order for a household to be eligible for SNAP benefits its gross income cannot exceed the poverty line. See 7 U.S.C. § 2014(c).
The 2018 Farm Bill amended the Lean Food Plan to require the USDA to “reevaluate and publish a market basket for the lean food plan based on current food prices, food composition data, consumption patterns , and food guidance” in 2022 and 5-years later. Farm Improvement Act of 2018 (Farm Bill of 2018), Pub. L. No. 115-334, title IV, § 4002, 132 Stat. 4490, 4624 (Dec. 20, 2018). On August 16, 2021, USDA published TFP 2021. USDA, Thrifty Food Plan, 2021 (August 2021), available at https://FNS.usda.gov/TFP (last visited Jul. 12, 2022) . TFP 2021 is USDA’s update to the TFP market basket required by the 2018 Farm Bill.
TFP 2021 outlines the process and methods used to re-evaluate the Thrifty Food Plan. Before the 2021 revaluation, the market basket price was updated to 2006. 2021 TFP at 30. The result of the 2021 revaluation is that the monthly market basket price for the reference family of four is $835.57. 2021 TFP at 34. This represents an increase of $145.19 (in 2021 dollars) in the price of the forward market basket. See id. at 34-35. Changes to the maximum SNAP benefit allocation based on the 2021 TFP took effect on October 1, 2021. 2021 TFP at 51.
The 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 the Treasury Department for review. review before the law goes into effect. 5 U.S.C. § 801(a)(1)(A). The report must contain a copy of the rule, a “brief general statement relating to the rule,” and the proposed rule’s effective date. Identification. The agency may find on good cause that the public notices and procedures are ineffective, unnecessary, or contrary to the public interest and the rule will take effect at such time as the agency determines. 5 U.S.C. § 808(2). Each house of Congress shall report the bill to the chairman and ranking member of each standing committee having jurisdiction. 5 U.S.C. § 801(a)(1)(C). The CRA allows Congress to review and veto laws enacted by federal agencies within 60 days using a special process. See 5 U.S.C. § 802. If the objection resolution is made, then the new rule has no force or effect. 5 U.S.C. § 801(b)(1).
The CRA adopts the statutory definition under the Administrative Procedure Act (APA), 5 U.S.C. § 551(4), which states that a law is “the whole or part of an agency’s statement of general or particular concern and future effect intended to carry out, interpret, or prescribe a law or policy or defining the organization, system, or the practice of institutional requirements.” 5 U.S.C. § 804(3). The CRA exempts three categories of regulations from coverage: (1) specific applicable regulations; (2) regulations relating to agency management or personnel; and (3) organizational rules, procedures or agency practices that do not materially affect the rights or obligations of non-agency parties. Identification.
USDA has not submitted a CRA report to Congress or the Comptroller General for the 2021 TFP. In its response to us, USDA stated that the 2021 TFP was not subject to the CRA because it was not a rule within the meaning of the APA or the CRA. Response Letter, at 3–4. USDA also stated that it met the CRA’s good cause exception, and, therefore, 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 to the insurance rule, and, therefore, is subject to the submission of CRA requirements.
To determine whether the 2021 TFP is a rule under the CRA, we first address whether the 2021 TFP meets the APA’s definition of a rule. As explained below, we conclude that it does. The next step, then, is to determine whether one of the CRA exceptions applies. We conclude that it did not.
The 2021 TFP meets the APA’s definition of a rule that the CRA relies on. First, the 2021 TFP is an agency statement as issued by the USDA to update the price of the market basket that was last revised in 2006. See 2021 TFP at 1. Second, the 2021 TFP is prospective, as it provides new market guidance. . price basket 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’s action was prospective because the action was prospective in nature as it was concerned with future policy considerations rather than an evaluation of past or present conduct). Finally, the 2021 TFP is designed to be implemented, interpreted, or written into law or policy when it implements the new market basket under the Food and Nutrition Act of 2008 and the Agricultural Act of 2018. 2021 TFP at 4-6.
In its Response Letter, USDA maintains that the 2021 TFP is exempt from the APA rule making provision because it relates to agency management and benefits, and therefore, is not statutory. Answer Sheet 4. I do not object to this reason. Specifically, the USDA notes that the APA requires notice and comment on all regulations “except insofar as they involve . . . matters related to agency management or personnel or public property, loans, grants, benefits, or contracts.” [Evidence filed USDA argues that “valuing a market basket based on current food prices is a matter of “agency administration” [] of SNAP and is related to SNAP’s benefits. § 553(a)(2) applies to exceptions to the APA’s rulemaking process, not to the definition of the rule. Even assuming that the 2021 TFP waives the APA’s notice and comment requirements, that does not mean it is not a rule as defined in 5 U.S.C. § 551(4). See B-323772 , September 4, 2012 (noting that the CRA is intended to include in it, almost all rules that the agency issues, not just those that must be promulgated in accordance with the APA’s notice and comment requirements). to note that 7 U.S.C. § 2013(c) specifically directs the USDA to issue regulations related to SNAP “in accordance with the procedures established in section 553 of title 5.”, and, therefore, meets the definition of the statute.
USDA argues that Congress did not require the 2021 TFP to be enacted as a rule because Congress did not specifically require the 2021 TFP to be subject to the CRA. Response Letter, at 5. I disagree with the CRA’s interpretation. We conduct the analysis under the CRA which requires all laws to follow the procedures set forth in 5 U.S.C. § 801. All laws are subject to procedures required by the CRA, whether Congress specifically requires them to be or not, before they take effect. 5 U.S.C. § 801.
USDA also argues that Congress had effective notice that the 2021 TFP would increase SNAP benefits, and as a result, USDA is not required to provide a formal CRA notice to Congress. Reply Brief, at 5-7. However, constructive notice is not an exception to the CRA’s notice procedures. As discussed above, the CRA is the congressional oversight mechanism for agency rulemaking. The CRA requires agencies to submit a report on the rule. 5 U.S.C. § 801(a)(1)(A). The submission of this report begins a congressional review process that could lead to Congress rejecting the rule. 5 U.S.C. § 801(b)(1). It is the report that triggers the CRA review process. As a result, the rule’s constructive notice is not the same as submitting a formal report as required by the CRA. While there are exceptions to the waiver of the delay in the effective date of the statute, 5 U.S.C. § 808, there are no exceptions to the filing of the report.
Having concluded that the 2021 TFP meets the APA’s definition of rule, we now turn to whether one of the three CRA exceptions applies. We also address USDA’s argument that the good cause exception provides an exemption from the CRA’s submission requirements. As explained below, we conclude that they do not.
First, the 2021 TFP is not a specific rule that is applicable. Special practice rules are addressed to specific, identified organizations. See United States Administrative Conference, Miscellaneous Statement, 39 Fed. Reg. 4846, 4849 (Feb. 7, 1974) (explaining that the rule of general application is class-open but that the special rule is applicable only to those named). TFP 2021 applies to all households whose income has fallen below the poverty line and is not addressed to a specific, identified person. Therefore, it is a rule of general application and not a specific rule.
Second, this is not a regulation related to agency management or personnel. The law relates to the agency’s management or employees if it applies to the agency’s employees and not to outside parties. See example B-331324, Oct. 22, 2019 (determining that 5 U.S.C. § 804(3)(b) does not apply when the statute deals with actions taken by the bank and not by agency management or employees). The 2021 TFP addresses the amount of SNAP benefits for eligible households and, market basket costs The 2021 TFP applies broadly to the 48 contiguous states and the District of Columbia.[2]
Finally, the 2021 TFP significantly affects the rights of non-institutional parties because it affects the eligibility of families by providing an increased profit allocation for them to have more nutritious food.
USDA argues that TFP 2021 meets the good cause exception of the CRA, and therefore, USDA is not required to follow the CRA’s submission requirements. Reply Brief, at 7-8. In its response USDA stated that good cause existed for issuing the 2021 TFP with an effective date of August 2021. Id. at 8. USDA also stated that this precluded the implementation of a formal CRA notice prior to the effective date. Identification. While the CRA does not provide an emergency outside of the procedural requirements to submit rules for Congressional review, the CRA and the APA address the need for an agency to take immediate action without delay. Agencies may waive the required delay of the effective date when the agency finds “good cause” (which includes the finding and a brief statement of the reasons for the issuance of the rule) in the notice and public order is ” unreasonable, unnecessary, or contrary to the public interest.” 5 U.S.C §§ 553(b), 808(2). Therefore, an agency may issue a rule that takes effect immediately while still complying with the agency’s statutory obligation to submit the rule to Congress for reauthorization. See. Stating a good reason exception does not serve to waive the entire CRA submission requirement. Notably, the 2021 TFP does not include a finding or statement of reasons for a good reason exception to the CRA procedural rules to submit the 2021 TFP. of congressional review, nor did the 2021 TFP include an accelerated effective date. Therefore, USDA did not properly apply the good cause exception.
Therefore, we conclude that neither of the three exceptions to the CRA coverage rule, nor the good cause exception apply, and the 2021 TFP is subject to the CRA’s submission requirements.
TFP 2021 is a rule for CRA purposes because it meets the APA’s definition of rule and no CRA exceptions apply. Therefore, even if exempted from the notice and comment requirements of the APA, the 2021 TFP is subject to the CRA’s requirement that it be submitted to Congress before it takes effect.
Edda Emmanuelli Perez
