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Updated February 27, 2023
The Congressional Review Act (CRA): A Brief Overview
What is the CRA? The CRA (codified at 5 U.S.C. §§801-
808) is a tool Congress can use to overturn certain federal
agency actions. The CRA was enacted as part of the Small
Business Regulatory Enforcement Fairness Act in 1996.
The CRA requires agencies to report the issuance of rules
to Congress and provides Congress with special procedures,
in the form of a joint resolution of disapproval, under which
to consider legislation to overturn rules. If a CRA joint
resolution of disapproval is approved by both houses of
Congress and signed by the President, or if Congress
successfully overrides a presidential veto, the rule at issue
cannot go into effect or continue in effect.
What is a rule under the CRA? The CRA adopts the
broadest definition of rule contained in the Administrative
Procedure Act (APA), with three exceptions.
Definition of Rule Under the CRA
The APA definition of rule (5 U.S.C. §551 ) 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. The CRA excludes three types of actions from
this definition (5 U.S.C. §804(3)):
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 and obligations of non-agency
parties.
The CRA applies to final rules, including major rules, non-
major rules, and interim final rules. Additionally, the
definition is sufficiently broad that it may include agency
actions that are not subject to traditional notice-and-
comment rulemaking, such as guidance documents and
policy memoranda. The CRA does not apply to presidential
actions or to non-rule agency actions such as orders.
How many rules have been overturned using the CRA?
The CRA has been used to overturn a total of 20 rules: one
in the 107th Congress (2001-2002), 16 in the 115th Congress
(2017-2018), and three in the 117th Congress (2021-2022).
Submission of Rules to Congress
What submission is required? The CRA requires agencies
to submit their rules to both houses of Congress and the
Government Accountability Office (GAO) before they may
take effect. The CRA does not specify when an agency
must submit a rule. In practice, agencies generally submit
rules around the time they are published.
How do I know if a rule was submitted? Notice of each
chamber's receipt of a rule submitted under the CRA is
published in the Executive Communications section of
the Congressional Record. The Congress.gov website hosts
databases of these executive communications that can be
electronically searched. GAO also maintains on its website
a database of rules it has received under the CRA.
What happens if an agency does not submit a rule? In
some cases, an agency has failed to submit a covered action
to Congress, generally because the agency has not
considered the action to be a rule under the CRA. On
occasion when this has occurred, Members of Congress
have asked GAO for a formal opinion as to whether an un-
submitted action satisfies the CRA definition of rule such
that the agency would be required to comply with the CRA
submission procedures. GAO has issued dozens of opinions
of this type at the request of Members. These opinions are
available on GAO's website.
Although the CRA states that a joint resolution of
disapproval can be introduced only after Congress receives
a rule, Members have sometimes used these GAO opinions
to trigger the CRA's special procedures, even if the agency
never submitted the rule to Congress. Specifically, the
Senate has developed a practice in which the publication in
the Congressional Record of a GAO opinion classifying an
agency action as a rule can trigger the CRA's special
procedures for a joint resolution of disapproval.
Disapprovai Procedures
What does a joint resolution of disapproval look like?
The CRA stipulates the text for a joint resolution of
disapproval. Each CRA joint resolution of disapproval can
be used only to invalidate one final rule in its entirety.
Required Text of a CRA joint Resolution
of Disapproval
That Congress disapproves the rule submitted by the [agency]
relating to [name of the rule], and such rule shall have no force
or effect (5 U.S.C. §802(a)).
How is a joint resolution of disapproval filed? A CRA
joint resolution of disapproval is introduced in the same
way as any other bill. However, the joint resolution must be
introduced within a specific time frame: during a 60-days-
of-continuous-session period beginning on the day
Congress receives the rule. As discussed above, if the rule
is not submitted, the Senate may consider the date a GAO
opinion finding the action to be a rule is published in the
Congressional Record as the beginning of the period. Days-
of-continuous-session periods count every calendar day,
including weekends and holidays, and exclude only days
that either chamber (or both) is gone for more than three
days pursuant to an adjournment resolution.](ViewImageLocal?handle=hein.crs/goveksh0001&div=1&collection=&method=preview&ext=.png&size=3)