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May 18, 2026
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Download official Senate Record PDFReturn to issue contextMs. WARREN. Mr. President, I ask unanimous consent to have printed in the Record the GAO opinion letter dated May 12, 2026.
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
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 announces that the agency will forbear from
exercising its enforcement discretion with respect to the AI
Diffusion Rule by adopting a blanket non-enforcement policy
toward the rule. In addition, Commerce also announced that it
was planning to rescind the AI Diffusion Rule. Commerce
explained its actions as a change in policy, that is a
significant departure from the prior Administration's “ill-
conceived” policies.
Additionally, an agency statement describes agency
organization, procedure, or practice requirements when the
statement discusses the internal operations of an agency,
including statements that govern the conduct of agency
proceedings. The Press Release stated that a Commerce
official directed staff not to enforce the AI Diffusion
Rule—a matter of internal agency operations and practice.
Accordingly, the Press Release is a statement of agency
organization, procedure, or practice. Having satisfied all
the required elements, the Press Release meets APA's
definition of a rule.
Commerce Response
In its response to us, Commerce asserted that the Press
Release is not a rule under CRA because it is not a final
agency action; rather, it is an initial step before the
regulatory framework is finalized. Commerce argues that the
two-part finality test applied by the D.C. Circuit Court
governs whether an agency action is a final agency action
subject to CRA. In Soundboard Ass'n v. FTC, 888 F.3d 1261
(D.C. Cir. 2018), the Court addressed when an agency action
is “final” for purposes of judicial review under APA, not
when an action constitutes a rule for purposes of
congressional oversight. Under that test, an action is final
only if it marks the consummation of the agency's decision-
making process and determines rights or obligations or
produces legal consequences. As we explained in B-238859,
Oct. 23, 2017, judicial precedent regarding the ripeness of a
party's right to bring suit is “inapposite for CRA
purposes,” because the issue at hand is the exercise of
Congress's oversight procedures over agency rules, not a
private party's standing to challenge administrative action
in court.
Relevant here, our prior decisions illustrate how we
distinguish between interim steps and final agency actions
for CRA purposes. In B-336146, May 28, 2024, the National
Institute of Standards and Technology issued a notice in the
Federal Register requesting public comment on draft guidance
and planned to use the feedback it received to develop the
final version of the guidance document. We concluded that the
draft guidance was not a rule because the agency sought
public comment and planned to revise the document before
issuing final guidance. Additionally, we found that the draft
guidance did not alter the rights or obligations of regulated
parties, rather, it represented an interim step that, in its
current draft form, broke no new ground.
By contrast in B-335175, May 6, 2024, Commerce argued that
a notice of funding opportunity (NOFO) was not a final agency
action and therefore not subject to the CRA, asserting that
only the later adjudication of individual applications
constituted final agency action. We disagreed. We explained
that the NOFO itself represented Commerce's final
determination of the overall application process and
evaluation criteria, and that any subsequent adjudications
were distinct agency actions undertaken pursuant to the
NOFO's procedures.
Commerce maintains that the Press Release merely announces
the beginning of a rulemaking process to formally rescind and
replace the AI Diffusion Rule. There are various steps that
Commerce would need to take in order to rescind and replace
the AI Diffusion Rule. Commerce has explained it has not
taken those steps, and we are not aware that any have been
taken. Therefore, we find that the planned rescission of the
AI Diffusion Rule is not a final agency action that is ripe
for review under the CRA.
We turn to the other subject in the Press Release where
Commerce announced that it will not enforce the AI Diffusion
Rule even though the AI Diffusion Rule remains legally in
effect until Commerce completes its
planned rulemaking to rescind it. Commerce's Press Release
stated that enforcement personnel were instructed not to
enforce the AI Diffusion Rule and describes the Rule's
requirements in the past tense, as obligations and rights
that no longer operate in practice. Because Commerce is
operating as if the rule were already rescinded by applying a
categorical non-enforcement policy, our analysis focuses on
whether the agency's announced non-enforcement policy
constitutes a rule under CRA.
Pertinent here, Commerce maintains that its announced
enforcement policy is not a final agency action, arguing that
it merely informs the public about how it intends to exercise
its internal enforcement discretion. We disagree. Our
analysis in B-336146, May 28, 2024, is instructive here.
Unlike the action at issue there, Commerce's non-enforcement
policy does not bear the hallmarks of an interim step in an
ongoing process, such as a request for comment on proposed
guidance or a proposed rule. The Press Release is a
definitive announcement that Commerce has directed its
enforcement personnel not to enforce the AI Diffusion Rule.
Commerce has identified no procedural mechanism, whether
notice-and-comment, draft guidance, or any other step, within
which this directive operates. In the absence of any such
process, the announcement of Commerce's nonenforcement
directive in the Press Release cannot be viewed as
preliminary. Accordingly, the Press Release is a final
determination regarding the agency's enforcement policy.
CRA Exceptions
We must next determine whether any of CRA's three
exceptions apply. CRA provides for three types of rules that
are not subject to its requirements: (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.
(1) Rule of Particular Applicability
We have explained that rules of particular applicability
are those rules that are addressed to an identified entity
and also address actions that entity may or may not take,
taking into account facts and circumstances specific to that
entity. The Press Release is not limited to a single person
or entity as it announces policy changes and guidance that
apply broadly to all parties subject to EAR, rather than to
any specifically identified individuals or entities.
(2) Rule of Agency Management or Personnel
The Press Release is not a rule of agency management or
personnel. We have previously found that rules that fall into
this category relate to purely internal agency matters. These
include rules related to controlling, directing, or
supervising internal management issues, as well as those
related to personnel issues like communications between
employees and managers, leave, or benefits. Because the Press
Release primarily focuses on regulatory relief for industry
it does not fall into this exception.
(3) Rule of Agency Organization, Procedure, or Practice
that Does Not Substantially Affect Non-Agency Parties
Lastly, the Press Release is not a rule of agency
organization, procedure, or practice that does not
substantially affect the rights or obligations of non-agency
parties.
CRA's third exception was modeled on a similar APA
exception, which excludes “rules of agency organization,
procedure, or practice” from notice-and-comment
requirements. Accordingly, we look to APA case law concerning
this exception for guidance. Some courts have explained that
the purpose of the APA exception is to ensure “that agencies
retain latitude in organizing their internal operations,”
but only where such rules do not have a “substantial
impact” on non-agency parties.
As an initial matter, we must first determine whether the
Press Release is a rule of agency organization, procedure, or
practice. Rules of agency organization, procedure, or
practice are limited to an agency's methods of operation or
how the agency organizes its internal operations, including
the way that regulated entities submit information to an
agency, how the agency reviews that information, and rules
that affect the type or timing of actions the agency will
take based on that submission. We have only applied this
exception to rules that primarily focus on the internal
operations of an agency.
For example, in B-329926, Sept. 10, 2018, we found that
updates to a Social Security Administration (SSA) hearing
manual governing SSA adjudicators' use of information from
the internet qualified as a rule of agency organization,
procedure, or practice. There, the manual outlined procedures
for SSA employees to follow in processing and adjudicating
benefits claims. Because the manual was directed to and
binding only on SSA officials without imposing new burdens on
claimants, we concluded that the manual met CRA's third
exception.
The Press Release concerns a change in agency policy and
practice regarding enforcement of the AI Diffusion Rule.
Accordingly, it constitutes a rule of agency organization,
procedure, or practice. However, the Press Release is not
primarily concerned with internal agency operations. Commerce
explains that its recent actions were necessary to protect
industry from the AI Diffusion Rule's harmful effects and to
ensure continued U.S. leadership in AI innovation.
Rather than serving as a mechanism for internal quality-
control or resource allocation, the non-enforcement of the AI
Diffusion Rule directly affects licensing and the regulatory
treatment of AI model weights and hardware for non-agency
parties. Therefore, the analysis turns to whether this change
substantially affects the rights or obligations of non-agency
parties.
When analyzing this aspect of CRA's third exception, “the
critical question is whether the agency action alters the
rights or interests of the regulated entities.” Along
similar lines, courts have determined that “[a]n agency rule
that modifies substantive rights and interests can only be
nominally procedural, and the exemption for such rules of
agency procedure cannot apply.
For example, we have previously concluded that statements
that encourage regulated entities to alter internal
operations or policies have a substantial impact on non-
agency parties. In B-331560, Apr. 16, 2020, and B-330843,
Oct. 22, 2019, we concluded that certain Federal Reserve
supervisory letters set forth supervisory expectations that
shaped the internal operations of regulated entities and
therefore had a substantial impact on the regulated
community.
In another example, B-337673, Jan. 16, 2026, the National
Credit Union Administration (NCUA) announced, in a press
statement, that certain federally insured credit unions would
no longer be required to report overdraft and non-sufficient
funds (NSF) fee income, thereby eliminating a mandatory
disclosure obligation. NCUA's press statement indicated that
the withdrawal of the reporting requirement was intended to
encourage credit unions to use overdraft and NSF fees when
appropriate, which also affects the non-agency parties who
would be subject to the imposition of such fees. We concluded
that the withdrawal of the reporting requirements altered the
rights or obligations of affected credit unions as it
encouraged regulated entities to modify their operations.
The Press Release is analogous to the action at issue in
our NCUA decision, where we found that withdrawing a
reporting requirement for non-agency parties constituted a
substantive change with a substantial impact on non-agency
parties. Although the AI Diffusion Rule remains in effect,
Commerce has directed its personnel not to enforce it and is
operating as though the rule has been rescinded, such that
the rights and obligations created by the rule no longer
function in practice. The non-enforcement directive
effectively sets aside the AI Diffusion Rule's revisions to
EAR, thereby suspending the licensing, reporting, compliance,
and license-exception eligibility requirements the rule would
otherwise impose on regulated parties.
More specifically, the AI Diffusion Rule would have
required authorization for exports, reexports, and in-country
transfers of newly controlled AI model weights. It would also
have required regulated parties to obtain licenses for
transactions involving specified advanced-computing
integrated circuits and added provisions regarding foreign-
produced items subject to EAR. In addition, the rule would
have required regulated parties to treat certain training of
controlled models as a red-flag diversion risk and to verify
whether the resulting model weights could be exported to a
destination requiring a license. Lastly the rule would have
provided newly created license exceptions.
Commerce asserts that the Press Release is analogous to a
separate line of GAO decisions—specifically B-330190, Dec.
19, 2018, and B-334045, July 5, 2023. These decisions
involved the manner in which an agency exercises its
enforcement discretion within the bounds of the law through
prioritization schemes or other procedural mechanisms and are
distinguishable from the approach taken by Commerce here.
For instance, in B-330190, Dec. 19, 2018, we considered a
Department of Justice (DOJ) memorandum adopting a “zero-
tolerance” policy for prosecuting individuals who violated
the law by entering the country illegally. Although the
memorandum noted that previous administrations did not
prosecute individuals who entered the country illegally under
the relevant statutory provision, the statute authorized
civil and criminal penalties including fines and
imprisonment. We concluded that the rights and obligations in
question were prescribed by existing immigration laws and
remained unchanged by the agency's internal enforcement
procedures. Thus, the memorandum did not change the
underlying rights or obligations of regulated parties;
rather, it reflected DOJ's decision to reallocate its
prosecutorial resources within the existing statutory
framework.
In B-334045, July 5, 2023, we considered the Department of
Homeland Security's (DHS) termination of its Migrant
Protection Protocols (MPP). MPP was a program under which DHS
could return certain migrants, who arrived at the southern
border, to Mexico to await proceedings to determine
inadmissibility or deportability. We reasoned that the
termination of MPP fell into CRA's third exception because
although it changed previous policy, there was no underlying
change in the legal rights of migrants. We noted that the
ultimate inadmissibility or deportability of migrants
arriving on land from a foreign contiguous territory was
already prescribed by existing immigration laws, and those
rights were unchanged by DHS's termination of MPP and the
location from which individuals await the proceedings to
determine inadmissibility or deportability. DHS had instead
restored case-by-case exercise of
its statutory discretion. Thus, the underlying law from which
the rights and obligations of migrants emerged remained
unchanged as DHS did not change the basis upon which it
assessed compliance with immigration laws.
In B-335516, Jan. 24, 2024, the Department of Education
(Education) announced a twelve-month “On-Ramp” payment
period to ease the transition as large numbers of borrowers
resumed the repayment of their student loans. During this
period, payments remained due, interest accrued, and
borrowers would not be reported to credit bureaus, considered
in default, or referred to collections. Borrowers who did not
make payments would not receive credit toward loan-
forgiveness programs, and Education emphasized that borrowers
who could pay should pay. We concluded that the action fell
within CRA's third exception because it did not alter
borrowers underlying legal obligations. Education only
changed when it would assess compliance with the duty to make
payments and when it would impose corresponding penalties.
The legal obligation to pay remained fully in force, interest
continued to accrue, and penalties would be enforced after
the On-Ramp period. Education therefore announced only a
temporary adjustment to enforcement procedures, not a change
to borrowers' substantive rights or obligations or how the
agency will assess compliance with existing law, but rather
when the assessment would happen.
This action by Commerce is analogous to those in B-337673,
Jan. 16, 2026, and similar cases in which the agency altered
the basis or factors for assessing compliance with the law,
thereby influencing the internal operations of regulated
entities, even though the underlying law remained the same.
In those cases, we concluded that an agency action can have
substantial effect because it changes the framework through
which compliance with that law is evaluated.
marketplace and third parties.” These statements confirm
that Commerce was not merely allocating enforcement
resources, ensuring quality control, or organizing its
internal operations; rather, it was making a prospective,
across-the-board determination that the AI Diffusion Rule
would not be given effect, thereby eliminating rights and
obligations noted above. Consistent with our prior decisions,
Commerce's announcement of its non-enforcement of a duly
promulgated rule alters existing regulatory rights and
obligations of non-agency parties. Accordingly, it does not
fall within CRA's third exception.
CONCLUSION
The Press Release is a rule for purposes of CRA because it
meets the APA definition of a rule and no CRA exception
applies. Therefore, the Press Release is subject to the CRA
requirement that it be submitted to Congress and the
Comptroller General before it can take effect.
Edda Emmanuelli Perez,
General Counsel.