GAO Issues Opinions on Applicability of Congressional Review Act to Two Guidance Documents Page: 1 of 2
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GAO Issues Opinions on Applicability of Congressional
Review Act to Two Guidance Documents
October 25, 2017 (IN10808)
" Maeve P. Carey
Maeve P. Carey, Specialist in Government Organization and Management (mcareyacrsloc.gov, 7-7775)
On October 19, 2017, the Government Accountability Office (GAO) released an opinion on the applicability of the
Congressional Review Act (CRA) to a 2013 interagency guidance document on leveraged lending issued by the Office
of the Comptroller of the Currency, the Federal Reserve Board of Governors, and the Federal Deposit Insurance
Corporation. The opinion was issued in response to a letter written to GAO by Senator Pat Toomey. In the letter,
Senator Toomey requested GAO's opinion as to whether the interagency guidance falls within the definition of "rule"
under the CRA. GAO's opinion concluded that the guidance does fall within the definition, and it is therefore subject to
the requirements of the CRA.
In addition, on October 23, 2017, GAO issued another opinion on whether another agency guidance document was
subject to the CRA. The guidance document in question was a 2016 amendment to the Tongass Land and Resource
Management Plan, which was issued by the Department of Agriculture. GAO's opinion on the land management plan
was written in response to a request from Senator Lisa Murkowski inquiring whether GAO considered the document to
be a "rule" under the CRA. In its opinion, GAO concluded that the management plan does fall within the definition.
The definition of a "rule" under the Congressional Review Act is broader than the category of rules that are subject to
the Administrative Procedure Act's (APA's) notice and comment requirements. As such, some agency actions (e.g.,
guidance documents) that are not subject to notice and comment rulemaking may still be considered rules under the
CRA. In its opinion on the interagency leveraged lending guidance document, GAO's analysis concluded that it "is a
general statement of policy designed to assist financial institutions in providing leveraged lending to creditworthy
borrowers in a sound manner. As such, it is a rule subject to the requirements of CRA." In its opinion on the Tongass
land management plan, GAO concluded that "the 2016 Tongass Amendment is a rule for CRA purposes as it meets the
definition of the term 'rule' under APA, and none of the CRA exceptions apply."
In several instances since the enactment of the CRA in 1996, Members of Congress have identified agency actions that
were not notice-and-comment rules and sought an opinion from GAO as to whether the actions would fall under the
CRA's broad definition of "rule," despite the agency not having undertaken a rulemaking process or submitted the action
to Congress. Including the recent response to Senator Toomey's and Senator Murkowski's letters, GAO has now issued
13 such opinions, the first 11 of which are listed in the Appendix of CRS Report R43992. In 9 of the 13 cases, GAO
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Carey, Maeve P. GAO Issues Opinions on Applicability of Congressional Review Act to Two Guidance Documents, report, October 25, 2017; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc1043359/m1/1/?q=agriculture: accessed October 14, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.