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1 1 (April 24, 2023)

handle is hein.crs/goveljf0001 and id is 1 raw text is: Congressional Research Se Infrmring the legislitive debate since 191 April 24, 2023 Defining Final Agency Action for APA and CRA Review Executive branch action may be subject to both judicial and congressional review. Two federal statutes authorizing such review are the Administrative Procedure Act (APA), which generally governs judicial review of agency action, and the Congressional Review Act (CRA), which provides an avenue for Congress to review agency rules. Both statutes only authorize review of final actions taken by agencies. This In Focus discusses these two requirements for APA or CRA review. Background: APA and C-RA Revw The APA outlines the procedures agencies usually must follow when they promulgate rules, adjudicate cases, or take other actions. For instance, for certain types of agency rules known as substantive or legislative rules, the APA generally requires agencies to offer public notice and opportunity to comment on the rule. These requirements are often referred to as notice-and-comment procedures. The APA also provides an avenue for injured parties to challenge final agency actions in court. For more information on judicial review under the APA, see CRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by Jared P. Cole. The CRA requires agencies to submit most rules to Congress for review. The law establishes procedures to enact a joint resolution of disapproval that will render a rule ineffective if passed in both houses and signed by the President. Unlike the APA, the CRA applies only to agency rules, excluding orders and other nonrule actions. In addition, the CRA is a tool for congressional oversight, requiring the submission of rules to Congress and the Government Accountability Office (GAO). In contrast to the APA, the CRA explicitly bars judicial review and in practice, GAO has become the arbiter of certain legal questions under the CRA. Notwithstanding these differences, the CRA incorporates certain language from the APA. The CRA adopts the APA's definition of agency and references the APA's definition of rule. GAO has thus concluded that the CRA also only applies to final agency actions. For more information on the CRA, see CRS Report R43992, The Congressional Review Act (CRA): Frequently Asked Questions, by Maeve P. Carey and Christopher M. Davis. Agency Action Both the APA and CRA apply to actions of agencies, a term defined in 5 U.S.C. § 551. (The Freedom of Information Act also uses this definition, while some other federal laws use other definitions to determine their scope.) The APA definition of agency is relatively broad, encompassing each authority of the Government of the United States. However, the definition expressly excludes Congress, courts, and the governments of U.S. territories and the District of Columbia, as well as-for most purposes-certain military authorities. Courts have held the exclusions of Congress and the courts also exclude legislative- and judicial-branch agencies such as the Government Publishing Office and the United States Sentencing Commission. The Supreme Court has also ruled that the APA does not apply to the President, although lower courts have held that 5 U.S.C. § 551 can sweep in some entities within the Executive Office of the President, as discussed below. GAO has similarly concluded that the CRA does not encompass presidential actions such as executive orders. 5 U.S.C. § 551 does not define an agency as being located within a specific executive-branch department, and thus the term may include independent establishments. Cases have addressed whether entities like the Smithsonian Institution or advisory committees fall within the definition. To resolve these challenges, courts have asked whether the entity exercises substantial independent authority. Soucie v. David, 448 F.2d 1067, 1073 (D.C. Cir. 1971). The first piece of this inquiry asks whether an entity exercises substantial authority. Logically, for an entity to be an authority of the government it must exercise some governmental authority. Dong v. Smithsonian Inst., 125 F.3d 877, 881 (D.C. Cir. 1997). Applying this standard, for example, one federal appeals court concluded that the Smithsonian Institution did not qualify as an agency because it did not perform any regulatory functions or control the allocation of federal dollars. In another ruling, a trial court highlighted two key ways an entity may exercise substantial authority: investigative power and authority to make final and binding decisions. Elec. Privacy Info. Ctr. v. Nat'l Sec. Comm'n on Artificial Intelligence, 466 F. Supp. 3d 100, 109 (D.D.C. 2020). The second aspect of the inquiry looks to independence. The question of independence has come up, for example, when courts evaluate whether advisory committees are independent of the President, or whether they fall within the APA's presidential exemption. Courts look to whether a committee merely advises and assists the President, or whether it performs significant nonadvisory functions. As part of this inquiry, courts may use a three-factor analysis that looks to how close operationally the group is to the President, what the nature of its delegation from the President is, and whether it has a self-contained structure. Meyer v. Bush, 981 F.2d 1288, 1293 (D.C. Cir. 1993). GAO has adopted this analysis to determine whether agency actions are attributable to the President and therefore excluded from the scope of the CRA. GAO has also looked to whether the governing statute expressly grants authority to the President. See Safer Federal Workforce Task Force

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