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U.S. Department of Agriculture, Food and Nutrition Service—Applicability of the Congressional Review Act to Food and Nutrition Service Policy Memorandum CRD 01-2022, Application of Bostock v. Clayton County to Program Discrimination Complaint Processing—Policy Update

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Highlights

 

The U.S. Department of Agriculture, Food and Nutrition Service (USDA/FNS) published a memorandum titled Application of Bostock v. Clayton County to Program Discrimination Complaint Processing—Policy Update (Update). GAO received a request for a decision as to whether the Update is a rule for purposes of the Congressional Review Act (CRA). CRA incorporates the Administrative Procedure Act's (APA) definition of a rule and 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 to the Comptroller General. USDA/FNS did not submit a CRA report to Congress or the Comptroller General on the Update.

The Update announced USDA/FNS's conclusion that the prohibitions against sex discrimination in USDA/FNS-enforced statutes prohibit discrimination on the basis of gender identity and sexual orientation. Based on this conclusion, the Update directed state agencies and program operators to handle complaints alleging discrimination on the basis of gender identity and sexual orientation as complaints of prohibited sex discrimination. We conclude that the Update meets CRA's definition of a rule and no CRA exception applies. Therefore, the Update is subject to CRA's submission requirement.


 

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