U.S. GOVERNMENT ACCOUNTABILITY OFFICE OPINION LETTER

On 2026-05-18, Senator Elizabeth Warren (D-MA) delivered a floor speech titled "U.S. GOVERNMENT ACCOUNTABILITY OFFICE OPINION LETTER" in the Senate.

U.S. GOVERNMENT ACCOUNTABILITY OFFICE OPINION LETTER

Congressional Record, Volume 172 Issue 84 (Monday, May 18, 2026) [Congressional Record Volume 172, Number 84 (Monday, May 18, 2026)] [Senate] [Pages S2321-S2324] From the Congressional Record Online through the Government Publishing Office [ www.gpo.gov ] U.S. GOVERNMENT ACCOUNTABILITY OFFICE OPINION LETTER Ms. WARREN. Mr. President, I ask unanimous consent to have printed in the Record the GAO opinion letter dated May 12, 2026. There being no objection, the material was ordered to be printed in the Record, as follows: Decision Matter of: U.S. Department of Commerce, Bureau of Industry and Security--Applicability of the Congressional Review Act to the Rescission of the Artificial Intelligence Diffusion Rule. File: B-337935. Date: May 12, 2026. DIGEST The U.S. Department of Commerce, Bureau of Industry and Security (Commerce) issued a press release titled Department of Commerce Announces Rescission of Biden-Era Artificial Intelligence Diffusion Rule, Strengthens Chip-Related Export Controls (Press Release). The Press Release announced the non-enforcement of the AI Diffusion rule. The Press Release also announced the planned rescission of the Framework for Artificial Intelligence Diffusion rule (AI Diffusion rule). The Congressional Review Act (CRA) 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 the Comptroller General. CRA adopts the definition of rule under the Administrative Procedure Act (APA) but excludes certain categories of rules from coverage. As of the date of the Press Release, Commerce announced a non-enforcement policy that applies to all parties otherwise subject to the AI Diffusion Rule. As such, Commerce's non- enforcement policy is generally applicable, operates prospectively, and implements agency policy. We conclude that the non-enforcement policy announcement in the Press Releases falls within APA's definition of a rule, and that no CRA exception applies. Therefore, the Press Release is a rule subject to CRA's submission requirements. DECISION On May 13, 2025, the U.S. Department of Commerce, Bureau of Industry and Security (Commerce), issued a press release titled Department of Commerce Announces Rescission of Biden- Era Artificial Intelligence Diffusion Rule, Strengthens Chip- Related Export Controls (Press Release). We received a request for a decision about whether rescission of the AI Diffusion rule announced in the Press Release is a rule for purposes of the Congressional Review Act (CRA). As discussed below, we conclude that the Press Release is a rule for purposes of CRA. Our practice when issuing decisions is to obtain the legal views of the relevant agency on the subject of the request. Accordingly, we reached out to Commerce to obtain its views. We received Commerce's response on January 30, 2026. BACKGROUND Export Control Reform Act of 2018 To protect national security and support U.S. foreign policy and economic objectives, the Export Control Reform Act of 2018 (ECRA) authorizes the President to regulate exports of technologies and other items as well as certain high-risk activities of U.S. persons. ECRA also provides that the President shall carry out these authorities primarily through Commerce. Commerce administers and enforces export controls on [[Page S2322]] specified items and activities through its Export Administration Regulations (EAR). Under ECRA, Commerce is authorized to establish and maintain the Commerce Control List (CCL). The CCL identifies items subject to export, reexport, and in-country transfer controls. ECRA also authorizes Commerce to require licenses for the export, reexport, or transfer of controlled items. Lastly, Commerce holds exclusive responsibility for investigating and enforcing criminal and civil violations of ECRA and EAR. AI Diffusion Rule On January 15, 2025, Commerce issued an interim final rule titled Framework for Artificial Intelligence Diffusion (AI Diffusion Rule). The rule took effect on January 13, 2025, and established a separate compliance date of May 15, 2025, with certain provisions having a delayed compliance date of January 15, 2026. The AI Diffusion Rule establishes a regulatory framework to control the global proliferation of advanced Artificial Intelligence (AI) by requiring licenses for the export, reexport, or in-country transfer of advanced computing integrated circuits and the model weights of the most advanced AI models. More specifically, the AI Diffusion Rule added a new control for AI model weights; revised license requirements and its review policy for advance integrated circuits and other related items; expanded upon or added to licensing exceptions; added red-flag guidance for AI model weights; and updated its Data Center Validated End User authorization to facilitate exports of advanced computing items to destinations that do not raise national security or foreign- policy concerns. Press Release Before the May 15, 2025, compliance date for the AII Diffusion Rule, Commerce issued its Press Release in two formats: a webpage version released on May 13, 2025, and a portable document format (PDF) version dated May 12, 2025, accessible via a link on the webpage version. Commerce announced that enforcement officials were instructed not to enforce the AI Diffusion Rule, because it represented ``ill- conceived and counterproductive'' policies. Commerce explained that its actions were done to ``ensure that the United States will remain at the forefront of AI innovation and maintain global AI dominance.'' In the two documents, Commerce also referred to a rescission of the AI Diffusion Rule. Although the two versions are substantively similar, they contain a subtle difference in wording with respect to whether the rescission is described as ``announced'' or ``initiated.'' Specifically, the May 13, 2025, webpage version states that Commerce ``announced'' a rescission of the rule while the May 12, 2025, PDF version states that Commerce ``initiated'' a rescission of the rule. In its response to our development letter, Commerce explained that it has initiated a rescission of the AI Diffusion Rule, which announced the beginning of the rulemaking process, and that it is not a final agency action. Accordingly, through its Press Release, Commerce announced that it had initiated a rescission of the AI Diffusion Rule and that it planned to publish a regulation to formalize the rescission and issue a replacement rule in the future. Commerce further explained that until the rulemaking process is complete, the AI Diffusion Framework remains in the Code of Federal Regulations. As explained more fully below, we find that this announcement does not constitute a final action that is ripe for review under the CRA. And as discussed further below, this decision examines Commerce's non-enforcement policy for the AI Diffusion Rule under the CRA. Conqressional Review Act CRA, enacted in 1996 to strengthen congressional oversight of agency rulemaking, requires federal agencies to submit a report on each new rule to both houses of Congress and to the Comptroller General for review before a rule can take effect. The report must contain a copy of the rule, ``a concise general statement relating to the rule,'' and the rule's proposed effective date. CRA allows Congress to review and disapprove rules issued by federal agencies for a period of 60 days using special procedures. If a resolution of disapproval is enacted, then the new rule has no force or effect. CRA adopts the definition of a rule under the Administrative Procedure Act (APA), which states that a rule is ``the 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.'' However, CRA excludes three categories of rules from coverage: (1) rules of particular applicability; (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. DISCUSSION At issue here is whether Commerce's Press Release meets CRA's definition of a rule, which adopts APA's definition of a rule, with three exceptions. As explained below, we conclude that it does and that no exceptions apply. Consequently, the Press Release is subject to review under CRA. The Press Release is a Rule under APA Applying APA's definition of a rule, the Press Release meets all of the required elements. First, the Press Release is an agency statement as it was issued by Commerce, a federal agency. Although ECRA vests export control authority in the President, it directs that such authority be carried out through Commerce. Here Commerce did not act as a mere conduit for presidential action but exercised its express statutory authority in announcing its regulatory and enforcement policy and practice. Accordingly, the Press Release is an agency statement. Second, the Press Release is a rule of general applicability and future effect. Here the Press Release applies to all regulated parties, thus it is generally applicable. Also, an agency's action is of future effect when it addresses policy considerations for the future rather than evaluating past or present conduct. Here, the Press Release satisfies this element because, as of the date of its issuance, it informed regulated entities and other interested parties that Commerce had adopted a non-enforcement policy for the AI Diffusion Rule. Lastly, the Press Release implements policy and describes agency organization, procedure, and practice. An agency statement implements, interprets, or prescribes law or policy when the action issues new regulations, changes regulatory requirements or official policy, or alters how the agency will exercise its discretion, among other things. Here, the Press Release