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Washington D.C. – U.S. Senator Marco Rubio (R-FL) joined Senator Rick Scott (R-FL) and Congressman Daniel Webster (R-FL) in leading 40 of their colleagues in a bicameral letter to the Comptroller General of the Government Accountability Office (GAO) after the District of Columbia’s Pretrial Services Agency (PSA) published a notice of its intent to create a database known as the “Employee Religious Exception Request Information System.” The letter requests that GAO determine whether the notice constitutes a rule for purposes of the Congressional Review Act, which Congress can invoke to overturn an agency’s action.
This records system is a central database, maintained by the Office of Management and Budget, that tracks the names, religious beliefs, and other personally identifying information of federal employees who have requested religious exemptions to the Biden Administration’s COVID-19 vaccine mandate on federal employees. More than 20 federal agencies, including the Department of Justice, the Department of Homeland Security, and the Department of Transportation, have issued similar notices to maintain databases tracking employees’ religious beliefs, and these lists will be shared between federal agencies.
A full list of cosigners is available here.
The full text of the letter is below.
Dear Mr. Dodaro,
On January 11, 2022, the Pretrial Services Agency (“PSA”) for the District of Columbia (an independent entity established within the Court Services and Offender Supervision Agency) published in the Federal Register a notice of its intent to create a system of records known as the “Employee Religious Exception Request Information System.” According to the public notice, the agency provided a report of the system of records to the Office of Management and Budget and to Congress, in accordance with 5 U.S.C. §552a(r).
We write to seek your determination of whether the notice of a new system of records constitutes a rule for purposes of the Congressional Review Act (“CRA”). As you are aware, the CRA relies on the definition of “rule” found in 5 U.S.C. §551(4):
“[R]ule means 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 and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing”.
Based upon this broad definition, the Government Accountability Office (GAO) has correctly observed that “agency pronouncements may be rules within the definition of 5 U.S.C. §551, and the CRA, even if they are not subject to notice and comment rulemaking requirements under section 553.” The PSA’s notice appears to have particular applicability, is prospective in nature, and prescribes the procedure or practice requirements of the agency relating to individuals employed by or working for the agency who submit a religious accommodation request related to a federally mandated vaccination requirement. For these reasons, we respectfully request that you evaluate whether the PSA’s notice and implementation of a new system of records is a “rule” under the CRA.
We thank you for your prompt attention and response to this inquiry.
Sincerely,