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The Congressional Review Act ((
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 a rule contained in the
Administrative Procedure Act (APA), with three
exceptions.
Definition of a Rule Under the CRA
The APA definition of a 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 define as rules
agency actions that are not subject to traditional notice-and-
comment rulemaking, such as guidance documents and
policy memoranda.
How many rules have been overturned using the CRA?
The CRA has been used to overturn a total of 17 rules: 1 in
the 107th Congress (2001-2002) and 16 in the 115th
Congress (2017-2018).
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
Updated December 18, 2018
RA)
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 an 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 a rule such that the agency
would be required to comply with the CRA submission
procedures. GAO has issued several 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 a rule is received
by Congress, Members have sometimes had success in
getting resolutions recognized as eligible for 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.
CRA Joint Resolution of
sapproval 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.
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 the rule
is received by Congress. 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.
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