Last month, the US Government Accountability Office (“GAO”) released a letter stating that a Consumer Financial Protection Bureau bulletin discussing indirect auto lending and compliance with the Equal Credit Opportunity Act qualifies as a “rule” for purposes of the Congressional Review Act (“CRA”). The GAO’s December letter is similar to a letter the GAO released in October 2017 stating that guidance on leveraged lending issued jointly by three banking regulators is a rule for purposes of the CRA.
The GAO’s interpretation provides an avenue for Congress to use the CRA to invalidate or repeal informal agency guidance that does not rise to the level of a regulation adopted through notice-and-comment rulemaking. Some in Congress seem to intend to do just that. This Legal Update discusses the mechanics and use of the CRA, the CRA’s definition of a “rule” and the implications of applying the CRA to interpretive rules and policy statements.