GAO Characterizes HHS Information Memorandum as a "Rule" for Purposes of the CRA

The Department of Health and Human Services’ (HHS) recent decision to consider waivers of the welfare work requirements, in addition to drawing considerable attention from political candidates and the media, has also raised a very interesting question of administrative procedure: the definition of “rule” under the Congressional Review Act (CRA).

On July 12, 2012, HHS issued an Information Memorandum that notified states of HHS’s willingness to waive certain provisions of the Temporary Assistance for Needy Families (TANF) program that require states to ensure that TANF recipients engage in work activities.  Invoking its waiver authority under section 1115 of the Social Security Act, HHS informed states that it would allow them to test various strategies designed to improve employment outcomes for program participants.  Though HHS informally notified certain members of Congress of this change, it did not formally submit the rule to Congress pursuant to the CRA, contending that the Information Memorandum constituted a non-binding guidance document exempt from the CRA.

On July 31, 2012, Senator Orin Hatch and Congressman Dave Camp asked the Government Accountability Office (GAO) to determine whether or not the HHS Information Memorandum comprised a “rule” that must be submitted to Congress under the CRA.  Noting that the CRA’s definition of “rule” is congruent to that of section 551 of the Administrative Procedure Act (APA), GAO concluded that the Information Memorandum qualified as a rule subject to the Act.  GAO stated that the Information Memorandum was a general statement of policy with prospective application and did not qualify for any of the exclusions under the CRA.  As such, GAO concluded that the CRA required HHS to submit the Information Memorandum to Congress.

This decision highlights the very broad interpretation of “rule” the applies both to section 551 of the APA and to the CRA, with many more agency actions’ qualifying as “rules” than those that are subject to the notice-and-comment requirements of section 553 of the APA.  If you are interested in learning more about the CRA, you can find information about a project the Administrative Conference undertook to study the Act, which is available on the ACUS website at this link.  If you have any questions about this post or the work of the Conference more generally, please contact Attorney Advisor Reeve T. Bull (

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