United States Government Accountability Office

GAO Testimony 

Before the Subcommittee on Health, 

Committee on Energy and Commerce, 

House of Representatives 

CONGRESSIONAL REVIEW

ACT 

Applicability to CMS 

Letter on State Children’s 

Health Insurance Program 

Statement of Dayna K. Shah 

Managing Associate General Counsel 

Office of General Counsel 

For Release on Delivery

Expected at 10:00 a.m. EDT 

Thursday, May 15, 2008

 

GAO-08-785T 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

To view the full product, click on 

GAO-08-785T. 

For more information, contact Dayna K. Shah 

at (202) 512-8208 or shahd@gao.gov. 

Highlights of GAO-08-785T, a testimony 

before Subcommittee on Health, 

Committee on Energy and Commerce, 

House of Representatives 

May 15, 2008

CONGRESSIONAL REVIEW ACT 

Applicability to CMS Letter on State Children's Health 

Insurance Program 

The definition of “rule” in the Congressional Review Act incorporates by 

reference the definition of “rule” in the Administrative Procedure Act (APA), 

with some exceptions. The APA definition of rule includes three elements 

relevant to GAO’s consideration of the SCHIP letter: an agency statement is a 

rule if it is of general applicability; of future effect; and designed to implement, 

interpret, or prescribe law or policy. GAO concluded that the letter meets 

these criteria and that none of the exceptions in the Review Act apply. GAO 

found the letter to be of general applicability since it extends to all states that 

seek to enroll children with effective family incomes exceeding 250 percent of 

the FPL in their SCHIP programs, as well as to states that have already 

enrolled such children. In addition, GAO found it to be of future effect, that is, 

concerned with policy considerations for the future rather than the evaluation 

of past or present conduct. Finally, GAO found that the letter is designed to 

implement, interpret, or prescribe law or policy since it purports to clarify and 

explain the manner in which CMS applies statutory and regulatory 

requirements to states that want to extend coverage under their SCHIP 

programs to children with effective family incomes above 250 percent of the 

FPL and seeks to promote the implementation of statutory requirements 

applicable to state plans. 

The history of the regulatory provision regarding substitution of coverage 

supported the view that the August 17 letter is a rule. In issuing the proposed 

and final rules to implement SCHIP, CMS indicated that it could not require 

states to adopt any particular measures to prevent substitution of coverage, 

stating that it did not have a statutory or empirical basis for doing so. In its 

August 17 letter, however, CMS states that its experience and information 

derived from the operation of SCHIP programs have made it clear that the 

potential for substitution is greater at higher income levels, and states seeking 

to expand their SCHIP populations should implement specific strategies to 

prevent substitution of coverage. Thus, the letter amounts to a marked 

departure from the agency’s settled interpretation of the regulation regarding 

substitution of coverage, and case law indicates that such a change may be 

made only by rule. Moreover, the agency expressly relied on the letter to 

disapprove a state request to amend its SCHIP plan to cover children with 

family incomes in excess of 250 percent of the FPL, confirming that the letter 

has binding effect and is, therefore, a rule. 

In response to GAO’s inquiries, CMS stated that the letter is a general 

statement of policy announcing the course that the agency intends to follow in 

adjudications concerning compliance with requirements already set forth in 

regulations. The GAO opinion explained that statements of policy would 

appear to fit within the definition of rule in the APA and that courts have 

referred to them as rules. However, GAO also concluded that the August 17 

letter does not have the characteristics of a statement of policy identified in 

case law. It evidences little, if any, of the tentativeness that is the hallmark of 

a policy statement, and the agency has relied on the letter to disapprove a 

state plan amendment, treating the letter as if it were a binding rule. 

The State Children’s Health 

Insurance Program (SCHIP) 

finances health care to low-income, 

uninsured children whose family 

incomes exceed the eligibility 

limits under their state’s Medicaid 

program, but who cannot afford 

other health insurance coverage. 

To participate in SCHIP, a state 

must submit a plan that describes 

how its program meets applicable 

requirements and must receive 

approval of the plan from the 

Centers for Medicare & Medicaid 

Services (CMS). 

On August 17, 2007, CMS issued a 

letter purporting to clarify statutory 

and regulatory requirements 

related to preventing SCHIP 

substitution for other insurance 

coverage in states wishing to cover 

children with effective family 

incomes in excess of 250 percent of 

the federal poverty level (FPL). The 

letter indicates that CMS will apply 

measures identified in the letter to 

state proposals to cover these 

children, as well as to states that 

already cover them, and may take 

corrective action against states that 

fail to adopt the measures within 12 

months. 

In response to a request from the 

Chairman of the Subcommittee on 

Health Care, Senate Committee on 

Finance, and a member of that 

Subcommittee, GAO considered 

whether the letter is a rule under 

the Congressional Review Act (the 

Review Act). This testimony is 

based on the resulting opinion, 

Applicability of the Congressional 

Review Act to Letter on State 

Children’s Health Insurance 

Program, B-316048, April 17, 2008. 
Mr. Chairman and Members of the Subcommittee: 

We appreciate the opportunity to participate in today’s hearing on the 

August 17, 2007, letter issued by the Centers for Medicare & Medicaid 

Services (CMS) on the State Children’s Health Insurance Program 

(SCHIP). My testimony focuses on GAO’s April 17, 2008, opinion, which 

addressed whether the CMS letter is a rule for purposes of section 251 of 

the Contract with America Advancement Act of 1996,

1

 commonly referred 

to as the Congressional Review Act (the Review Act).2

 In that opinion, we 

concluded that the letter is a rule under the Review Act, which, consistent 

with the Act’s requirements, must be submitted to Congress and the 

Comptroller General before it can take effect. 

SCHIP finances health care to low-income, uninsured children whose 

family incomes exceed the eligibility limits under their state’s Medicaid 

program, but who cannot afford other health insurance coverage.3

 To 

participate in SCHIP, a state must submit a plan that describes how its 

program meets applicable requirements and must receive approval of the

plan from CMS.4

 States are required to amend their plans to reflect 

changes in federal law, regulation, or policy, and changes in the operation

of their programs, including, for example, changes in eligibility criteria or

benefits.5

Background 

 1

 Pub. L. No. 104-121, § 251, 110 Stat. 847, 868-74, codified at 5 U.S.C. §§ 801-808. 

2 Applicability of the Congressional Review Act to Letter on State Children’s Health

Insurance Program, B-316048, April 17, 2008. The opinion is available at 

http://gao.gov/decisions/other/other.htm. 

3 See 42 U.S.C. § 1397aa. 

4

 42 U.S.C. § 1397aa(b). The authority vested in the Secretary of Health and Human Services

to approve and disapprove SCHIP state plans and plan amendments has been delegated to

the Administrator of CMS. State Child Health; Implementing Regulations for the State

Children’s Health Insurance Program, 64 Fed. Reg. 60882, 60895 (Nov. 8, 1999) (proposed

rule). 

5

 42 C.F.R. § 457.60. 

Page 1 GAO-08-785T 
State SCHIP programs are subject to a number of statutory provisions that 

are designed to ensure that SCHIP coverage does not become a substitute 

for other public or private coverage. For example, a state plan must 

describe the procedures used to ensure that coverage under the plan does 

not substitute for coverage under group health plans, generally referred to

as “crowd out.”6

 Regulations promulgated by CMS require states to adopt 

“reasonable procedures” to prevent crowd out.7

 Since CMS promulgated 

the regulations in 2001, states have adopted a number of different 

measures to prevent crowd out, which CMS has approved. 

In its August 17 letter, CMS purports to clarify the statutory and regulatory

requirements concerning prevention of crowd out for states wishing to 

provide SCHIP coverage to children with effective family incomes in 

excess of 250 percent of the federal poverty level (FPL) and identifies a 

number of particular measures that these states should adopt. For 

example, according to the letter, states should impose cost sharing in 

approximation to the cost of private coverage and establish a minimum of 

a 1-year period of uninsurance for individuals prior to receiving coverage.

In addition, the letter states that CMS will seek a number of assurances 

from states, including an assurance that the state has enrolled at least 95

percent of the children in the state with family incomes below 200 percent 

of the FPL who are eligible for SCHIP or Medicaid. The letter indicates 

that CMS will apply the measures to states’ proposals to cover children 

with effective family incomes in excess of 250 percent of the FPL, as well 

as to states that already cover such children. According to the letter, CMS 

may take corrective action against states that fail to adopt the identified 

measures within 12 months. 

The definition of “rule” in the Review Act incorporates by reference the 

definition of “rule” in the Administrative Procedure Act (APA), with some

exceptions. To determine whether the August 17 letter is a rule under the 

Review Act, we thus considered whether the letter is a rule under the APA 

Discussion 

 6

 42 U.S.C. § 1397bb(b)(3)(C).

7

 42 C.F.R. § 457.805. 

Page 2 GAO-08-785T 
and whether it falls within any of the exceptions contained in the Review 

Act.8

 Section 551(4) of the APA defines the term rule in pertinent part as 

“[t]he whole or a part of an agency statement of general or particular 

applicability and future effect designed to implement, interpret, or 

prescribe law or policy or describing the organization, procedure, or 

practice requirements of an agency . . . .”9

 This definition of rule has been 

said to include “nearly every statement an agency may make.”10

Agency statements that create binding legal norms—those that, for 

example, grant rights, impose obligations, or affect private interests—are 

rules under the APA.11 These rules—usually called legislative rules—

generally must be promulgated through notice and comment rulemaking 

procedures under 5 U.S.C. § 553. Courts have found that other agency 

pronouncements also are rules as defined in 5 U.S.C. § 551, even if they do

not create binding legal norms and are not subject to notice and comment 

rulemaking requirements under section 553. For example, agency 

 8

 The Review Act excepts the following from its definition of rule: (1) rules of particular

applicability, including a rule that approves or prescribes for future application rates,

wages, prices, services, or allowances therefor, corporate or financial structures, 

reorganizations, mergers, or acquisitions thereof, or accounting practices or disclosures

bearing on any of the foregoing; (2) rules relating to agency management or personnel; and

(3) rules of agency organization, procedure, or practice that do not substantially affect the 

rights or obligations of non-agency parties. 5 U.S.C. § 804(3). As discussed below, the letter 

is not a statement of particular applicability; rather, it substantially affects all states that 

seek to cover children with effective family incomes in excess of 250 percent of the FPL, as 

well as those states that already cover these children. The letter does not relate to agency 

management or personnel, and it does not relate to “agency organization, procedure, or 

practice” with no substantial effect on non-agency parties. Accordingly, we concluded that 

none of these three exceptions apply to the August 17 letter. 

9

 5 U.S.C. § 551(4). 

10 Batterton v. Marshall, 648 F.2d 694, 700 (D.C. Cir. 1980) (citing 5 U.S.C. § 551(4)). 

11 Id. at 700-02. 

Page 3 GAO-08-785T 
guidance documents and manuals have been held to be rules.

12 Agency

documents that clarify or explain existing legal requirements also have 

been held to be rules.13 Whether a particular agency pronouncement is a 

rule under section 551, therefore, does not turn on whether the rule is 

subject to notice and comment rulemaking requirements under section 

553. Legislative history of the Review Act confirms that it is intended to 

include almost all rules that an agency issues and reaches far more than 

those that must be promulgated according to the notice and comment 

requirements of section 553.14

The APA definition of rule includes three elements relevant to our 

consideration of the SCHIP letter: an agency statement is a rule if it is of 

general applicability; of future effect; and designed to implement, 

interpret, or prescribe law or policy. We concluded that the August 17 

letter meets these criteria. We found the letter to be of general, rather than 

particular, applicability since it extends to all states that seek to enroll 

children with effective family incomes exceeding 250 percent of the FPL in 

their SCHIP programs, as well as to all states that have already enrolled 

 12 See Reno v. Koray, 515 U.S. 50, 60–61 (1995) (internal agency guideline was a rule under 

the APA); Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 99–100 (1995) (provision of 

the Medicare Provider Reimbursement Manual was a rule under the APA); Appalachian

Power Co. v. Environmental Protection Agency, 208 F.3d 1015, 1021–22 (D.C. Cir. 2000) 

(agency guidance document can be rule under the APA); Professionals and Patients for 

Customized Care v. Shalala, 56 F.3d 592, 601–02 (5th Cir. 1995) (FDA Compliance Policy 

Guide was a rule, but was exempt from notice and comment procedures as a statement of

policy or interpretative rule). 

13 See, e.g., A.D. Transport Express, Inc. v. United States, 290 F.3d 761, 768 (6th Cir. 2002) 

(order explaining agency regulation is an interpretative rule under the APA); Guardian

Federal Savings and Loan Ass’n v. Federal Savings and Loan Insurance Corp., 589 F.2d 

658, 664 (D.C. Cir. 1978) (agency statements that clarify laws or regulations are rules under 

the APA). 

14 142 Cong. Rec. H3005 (daily ed. Mar. 28, 1996) (statement of Rep. McIntosh) (noting that 

although agency interpretive rules, general statements of policy, guideline documents, and

agency policy and procedure manuals may not be subject to notice and comment 

requirements, they are covered under the congressional review provisions of the new

chapter 8 of title 5). 

Page 4 GAO-08-785T 
such children.15 In addition, we found it to be of future effect, that is, 

concerned with policy considerations for the future rather than the 

evaluation of past or present conduct.16 Finally, the letter purports to 

clarify and explain the manner in which CMS applies statutory and 

regulatory requirements to states that want to extend coverage under their 

SCHIP programs to children with effective family incomes above 250 

percent of the FPL and seeks to promote the implementation of statutory 

requirements applicable to state plans. Accordingly, we found that the 

letter is designed to implement, interpret, or prescribe law or policy.17

The history of the regulatory provision regarding substitution of coverage

supported our view that the August 17 letter is a rule. In the preamble to 

the proposed rule to implement SCHIP, CMS indicated that it could not 

require states to adopt any particular measures to prevent substitution of 

coverage, stating that it did not have a statutory or empirical basis for 

doing so.18 CMS confirmed this interpretation in a final rule.19 In its August 

17 letter, however, CMS states that its experience and information derived 

from the operation of SCHIP programs have made it clear that the 

potential for substitution is greater at higher income levels, and states 

seeking to expand their SCHIP populations should implement specific 

 15 Cf. U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure 

Act 13 (1947) (the term rule includes statements of particular applicability applying either 

to a class or to a single person). 

16 See Bowen v. Georgetown University Hospital, 488 U.S. 204, 216 (1988) (Scalia, J., 

concurring) (“future effect” means that agency statement will have legal consequences for 

the future); see also U.S. Dep’t of Justice, Attorney General’s Manual on the

Administrative Procedure Act at 14 (rulemaking regulates the future conduct of either 

groups of persons or a single person and is essentially legislative in nature because it 

operates in the future and is primarily concerned with policy considerations, while 

adjudication is concerned with the determination of past and present rights and liabilities). 

17 See A.D. Transport Express, Inc., 290 F.3d at 768 (order explaining agency regulation is

an interpretative rule under the APA); Guardian Federal Savings and Loan Ass’n, 589 

F.2d at 664 (agency statements that clarify laws or regulations are rules under the APA). 

18 64 Fed. Reg. at 60921-22. 

19 See State Child Health; Implementing Regulations for the State Children’s Health

Insurance Program, 66 Fed. Reg. 2490, 2601-05 (Jan. 11, 2001) (final rule). 

Page 5 GAO-08-785T 
strategies as “reasonable procedures” to prevent substitution of coverage 

(for example, a minimum 1-year period of uninsurance before receiving

SCHIP coverage). Thus, the letter amounts to a marked departure from the 

agency’s settled interpretation of the regulation regarding substitution of 

coverage, and case law indicates that such a change may be made only by

rule.20

We also found it significant that CMS had expressly relied on the letter to

disapprove a state’s request to amend its SCHIP plan to cover children 

with family incomes above 250 percent of the FPL. Specifically, in April 

2007, the state of New York requested permission from CMS to amend its 

SCHIP plan to provide coverage to children with family incomes up to 400 

percent of the FPL. CMS denied New York’s request with specific reliance 

on the terms of the August 17 letter. For example, CMS indicated that the

state failed to provide assurances that it had enrolled at least 95 percent of

the children with family incomes below 200 percent of the FPL and that 

“as outlined in an August 17, 2007, letter, . . . such assurances are 

necessary to ensure that expansion to higher income populations does not 

interfere with the effective and efficient provision of child health 

assistance.” CMS also cited the fact that the state’s proposal did not 

include a 1-year period of uninsurance for populations over 250 percent of

the FPL. CMS concluded stating that its disapproval was “consistent with 

the August 17, 2007, letter to State Health Officials discussing how . . . 

existing statutory and regulatory requirements should be applied to all 

States expanding SCHIP effective eligibility levels above 250 percent of the 

FPL.” This application of the letter to deny New York’s proposed plan 

 20 See SBC Inc. v. Federal Communications Commission, 414 F.3d 486, 498 (3d Cir. 2005) 

(if agency’s present interpretation of regulation is a fundamental modification of previous 

interpretation, the modification can only be accomplished through notice and comment 

rulemaking); Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 629 (5th Cir. 2001) (settled policy 

of an agency is binding on the agency and may be changed only through a rule); Alaska 

Professional Hunters Ass’n v. Federal Aviation Administration, 177 F.3d 1030, 1033-34 

(D.C. Cir. 1999) (an agency is bound by settled interpretation given to its own regulation 

that agency can change only by rulemaking). 

Page 6 GAO-08-785T 
amendment served to confirm that the letter has binding effect and is, 

therefore, a rule.21

During the course of our work, we requested the views of the General 

Counsel of the Department of Health and Human Services on whether the 

August 17 letter is a rule for purposes of the Review Act.22 The response 

from the Director of the Center for Medicaid and State Operations within 

CMS did not directly address that issue. CMS indicated, however, that the 

letter is a “general statement of policy that announces the course which 

the agency intends to follow in adjudications concerning compliance with

requirements already set forth in regulations.” The agency also referred us

to a document prepared by the Department of Justice, which asserted that 

the August 17 letter was a general statement of policy. 

As discussed in our opinion, general statements of policy would appear to 

fit squarely within the definition of rule in the APA since they advise the 

public prospectively of the manner in which an agency proposes to 

exercise a discretionary power or what the agency will propose as policy.23

Further, courts have referred to them as rules.24 While some cases seem to 

 21See Appalachian Power Co., 208 F.3d at 1020-21 (if an agency treats a pronouncement as

if it were controlling, if it bases enforcement actions on the policies in the document, and if 

it leads private parties or states to believe they must comply with the pronouncement’s 

terms, it is a rule); McLouth Steel Products Corp. v. Thomas, 838 F.2d 1317, 1321 (D.C. Cir. 

1988) (because agency used policy statement to determine regulated entities’ obligations, 

policy statement is, therefore, a rule). 

22 In documents filed in related litigation, the Department of Justice has characterized the 

August 17 letter as a rule. See New York v. United States Dep’t of Health and Human

Services, No. 07 Civ. 08621 (S.D.N.Y. filed Oct. 4, 2007) (Def’s Mem. Supp. Mot. Dismiss, p. 

33). 

23 See U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure 

Act at 30, n. 3.

24 See, e.g., Chrysler v. Brown, 441 U.S. 281, 301 (1979) (“the central distinction among

agency regulations found in the APA is that between ‘substantive rules’ on the one hand 

and ‘interpretive rules, general statements of policy, or rules of agency organization, 

procedure, or practice’ on the other”); Noel v. Chapman, 508 F.2d 1023, 1030 (2d Cir. 1975) 

(general statement of policy is a rule directed at agency staff on how it will perform 

discretionary function); Guardian Federal Savings and Loan Ass’n, 589 F.2d at 666 

(describing test for determining whether “a rule is a general statement of policy”). 

Page 7 GAO-08-785T 
suggest that general statements of policy are not rules under the APA,25 the 

better reading of these cases, in our view, is that statements of policy are 

rules under section 551 of the APA but not the type of rules for which the 

APA requires notice and comment procedures because they are tentative 

statements of future intent and by their nature do not have the force of 

law. 

Further, even if these cases are read to mean that general statements of 

policy are not rules under the APA, we found that the August 17 letter does 

not have the characteristics of a general statement of policy identified in 

case law. One case provided a particularly useful explanation of the type

of language typically found in an agency general statement of policy. In

Pacific Gas and Electric Co. v. Federal Power Commission,

26 the United 

States Court of Appeals for the District of Columbia Circuit considered a 

pronouncement, styled a “statement of policy,” that expressed the Federal 

Power Commission’s (Commission) view of how deliveries of natural gas

should be prioritized during periods of shortage. The court held that the 

pronouncement was a general statement of policy, noting the tentative 

nature of the statement and the Commission’s acknowledgment that any 

particular decisions on curtailment could only be made in further 

proceedings. Among other things, the court found it significant that the 

statement indicated it was the curtailment policy that the Commission 

“proposes to implement” and the “plan preferred by the Commission,” 

which “will serve as a guide in other proceedings.” In addition, the 

Commission itself intended the statement only “to state initial guidelines 

as a means of facilitating curtailment planning and the adjudication of 

curtailment cases.” In effect, the Commission statement was a starting 

point to frame consideration of future proposals. 

 25 See, e.g., Sugar Cane Growers Cooperative of Florida v. Veneman, 289 F.3d 89, 95 (D.C. 

Cir. 2002) (some agency pronouncements lack the firmness of a prescribed standard to be 

considered rules); Syncor International Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997) 

(the primary distinction between a rule and a general statement of policy is whether the 

agency intends to bind itself to a legal position); Pacific Gas and Electric Co. v. Federal

Power Commission, 506 F.2d 33, 37 (D.C. Cir. 1974) (suggesting that policy statements are 

not rules under the APA). 

26 506 F.2d 33 (D.C. Cir. 1974). 

Page 8 GAO-08-785T 
We analyzed CMS’s August 17 letter under the criteria used by the court to 

determine that the Commission’s pronouncement was simply a statement 

of policy and concluded that the letter does not meet the criteria. The 

specific measures identified in the letter are not characterized as 

“proposals” or measures that are under development or to be implemented 

or adopted by later action; on the contrary, the letter sets forth specific 

strategies that states seeking to expand their SCHIP populations should 

implement as “reasonable procedures” to prevent substitution of coverage.

In addition, the letter contains no indication that the strategies are only 

guidelines that may or may not be applied in subsequent proceedings or 

express reference to exceptions in particular instances. Finally, the time 

frame specified in the letter for states to conform to the CMS “review 

strategy” evidences the agency’s intention to give the letter present and 

binding effect; if the letter were simply precatory or tentative in nature,

then there would be no need to establish a deadline by which states would 

need to implement the measures in the letter or face the possibility of a 

corrective action by the agency.

27 Because the letter establishes a deadline 

by which “affected States” need to implement its measures or face the

possibility of corrective action, we found that it evidences little, if any, of

the tentativeness that is the hallmark of a policy statement. 

In addition to the particular language of a statement, courts look to an 

agency’s actions in relation to the statement to determine whether it is a 

general statement of policy. As a number of courts have noted, a critical 

test of whether a rule is a general statement of policy is its practical effect 

in subsequent administrative proceedings. If the agency relies solely on the 

pronouncement itself to determine rights and obligations of others, the 

agency has treated the policy statement as if it were a binding rule, not a 

 27 Cf. Community Nutrition Institute v. Young, 818 F.2d 943, 947 (D.C. Cir. 1987) (agency 

pronouncement instructing regulated entities to obtain “exception” from standard in

announcement indicated pronouncement was intended to be binding). 

Page 9 GAO-08-785T 
general statement of policy.28 CMS’s express reliance on the August 17 

letter to deny the state of New York’s request to amend its SCHIP plan led 

us to conclude that the letter is not a policy statement. This conclusion 

was reinforced by our observation that the August 17 letter reflects a 

significant change in the agency’s settled interpretation of 42 C.F.R. § 

457.805, which policy statements by their nature do not do.29

We concluded that the August 17, 2007, letter to state health officials is a 

rule for the purpose of the Review Act on the grounds that it is a statement 

of general applicability and future effect designed to implement, interpret, 

or prescribe law or policy with regard to SCHIP. Furthermore, we found 

that the letter does not come within any of the exceptions to the definition 

of rule contained in the Review Act. We expressed no opinion on the 

applicability of any other legal requirements, including, but not limited to, 

notice and comment rulemaking requirements under the APA, or whether 

the August 17 letter would be a valid interpretation of statutes or 

regulations.

Mr. Chairman, this concludes my prepared statement. I would be happy to

respond to any questions that you or other Members of the Subcommittee 

may have. 

For further information regarding this testimony, please contact Dayna 

Shah at (202) 512-8208 or shahd@gao.gov. Contact points for our Offices of 

Congressional Relations and Public Affairs may be found on the last page 

Conclusion 

Contacts and 

Acknowledgments 

 28See Public Citizen, Inc. v. United States Nuclear Regulatory Commission, 940 F.2d 679, 

682-83 (D.C. Cir. 1991) (courts look to agency’s actual application of statement to 

determine its nature if language and context of agency statement are not conclusive); 

Guardian Federal Savings and Loan Ass’n, 589 F.2d at 666 (in subsequent administrative 

proceeding, agency cannot claim that prior statement of policy itself resolves contested 

issues).

29 See Syncor International Corp., 127 F.3d at 94 (a general statement of policy does not

impose, elaborate, or interpret a legal norm, but explains the agency’s manner of enforcing 

the existing legal norm). 

Page 10 GAO-08-785T 
of this statement. Major contributors to this testimony were Helen 

Desaulniers and Kevin Milne. 

Page 11 GAO-08-785T (994395) 
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