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Congressional Research Seleie
Inform ing the Iegislative debate since 1914
December 11, 2014
The Congressional Review Act ((
Overview
What is the CRA? The CRA (codified at 5 U.S.C. §§ 801-
808) is an oversight tool Congress can use to overturn
certain agency actions. The CRA requires agencies to report
the issuance of rules to Congress and provides Congress
with special procedures under which to consider legislation
to overturn rules, in the form of a joint resolution of
disapproval. The CRA was enacted as part of the Small
Business Regulatory Enforcement Fairness Act (SBREFA)
in 1996. If a CRA joint resolution of disapproval is
approved by both houses and signed by the President, or if
Congress 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 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 kinds of actions
from this definition of a rule:
* rules of particular applicability;
* any rule relating to agency management and
personnel; and
* any rule of agency organization, procedure, or
practice that does not substantially affect the
rights and obligations of non-agency parties.
5 U.S.C. § 804(3); see 5 U.S.C. § 551
The CRA applies to major rules, non-major rules, final
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.
Submission of Rules to Congress
What submission is required? Under the CRA, rules must
be submitted to both houses of Congress and the
Government Accountability Office (GAO). The CRA does
not specify when an agency must submit a rule. However,
since a rule cannot become effective until after it is
submitted, agencies generally submit rules around the time
the rule is published.
How do I know if a rule was submitted? Notice of each
chambers' receipt of a rule submitted under the CRA is
published in the Executive Communications section of
the Congressional Record. GAO also maintains a database,
the Federal Rules Database, tracking submission of rules.
What happens if an agency does not submit a rule? An
agency may decline to submit an action to Congress and
GAO if it does not consider the action to be a rule under the
CRA. However, the agency may not have the last word on
the applicability of the CRA. In the past, when Members of
Congress have thought an agency action is a rule under the
CRA, they have asked GAO for a formal opinion as to
whether the 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 11 opinions
of this type at the request of Members of Congress.
Although the CRA states that a joint resolution of
disapproval can only be introduced after a rule is submitted
and received by Congress, Members have had varying
degrees of success in getting resolutions recognized as
privileged under the CRA even if the agency never
submitted the rule to Congress. It appears in the past that
the Senate has considered the publication in the
Congressional Record of the official GAO opinions
discussed above as the trigger date for the initiation period
to introduce a disapproval resolution and deemed such
resolutions to qualify for the expedited Senate procedures.
CRA joint Resolution of Disapproval
Procedures
What does a joint resolution of disapproval look like?
The CRA stipulates the text for a joint resolution of
disapproval.
Required Text of a jRA 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.
A CRA joint resolution of disapproval can only be used to
invalidate one final rule in its entirety.
How is a joint resolution of disapproval filed? A CRA
joint resolution of disapproval is introduced in largely 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 only exclude
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