Updated December 11, 201418, 2018
The Congressional Review Act (CRA)
Overview
What is the CRA? The CRA (codified at 5 U.S.C. §§ 801808) is an oversighta 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 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 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” underUnder 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
and future effect designed to implement, interpret, or prescribe
law or policy ... .” The CRA excludes three kindstypes of actions
from from
this definition of a rule:
•
•
•
rules(5 U.S.C. §804(3)):
1. Rules of particular applicability;
any rule2. Rules relating to agency management and
or personnel; and
any rule3. Rules of agency organization, procedure, or
practice that does do
not substantially affect the
rights and obligations of non-agency parties.
5 U.S.C. § 804(3); see 5 U.S.C. § 551
parties.
The CRA applies to majorfinal rules, non-including major rules, final
nonmajor rules, and interim final rules. Additionally, the
definition is
sufficiently broad that it may define as “rules” agency
agency actions that are not subject to traditional notice and
comment-andcomment 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? Under the CRA, rules must
be submittedThe 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. However,
since a rule cannot become effective until after it is
submittedIn practice, agencies generally submit
rules around the time
the rule is they are published.
How do I know if a rule was submitted? Notice of each
chambers’chamber’s 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
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
Disapproval 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
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.
or effect.”
How is a joint resolution of disapproval filed? A CRA
joint resolution of disapproval is introduced in largely the
same the same
way as any other bill. However, the joint resolution
must be
introduced within a specific time frame: during a
60-days-of 60-daysof-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 GAO
opinion finding the action to be a rule is published in
the the
Congressional Record as the beginning of the period.
Days-of Daysof-continuous-session periods count every calendar
day,
including weekends and holidays, and only exclude
www.crs.gov | 7-5700
The Congressional Review Act (CRA)
daysexclude only days
that either chamber (or both) is gone for more than three
days, that is, pursuant to an adjournment resolution.
https://crsreports.congress.gov
The Congressional Review Act (CRA)
Are there expedited procedures for a CRA joint
resolution of disapproval in the House? There are no
expedited procedures for initial House consideration. The
joint resolution would likely be considered in the House
under the terms
of a closed special rule reported by the
Rules Committee.
A motion to recommit the joint
resolution would be in order in the House, although drafting
a motion that complies with the chamber’s germaneness
requirement for such motions may be difficult.
periods to introduce and act on a disapproval resolution
described above reoccur in their entirety in the next session
of Congress, beginning in each chamber on the 15th day of
session. This “lookback” provision is intended to ensure
that Congress will have the full periods contemplated by the
act to disapprove a rule regardless of when it is received.
The lookback provision may hold particular import in years
in which there is a change in party control of the
presidency.
Are there expedited procedures for a CRA joint
resolution of disapproval in the Senate? Yes. When a
CRA joint disapproval resolution meets certain criteria, it
cannot be filibustered in the Senate. To be eligible for these
“fast track” procedures, the Senate must act on a
disapproval resolution during a 60-days of Senate -of-Senate-session
period, which begins on the date the rule has been submitted
submitted to Congress and published in the Federal
Register (if
applicable).
Effect of a CRA Resolution
of Disapproval
Committee Consideration. When introduced, a CRA
disapproval resolution is referred to committee like other
legislation. A committee may choose to report a CRA
disapproval resolution, but it may not amend it. Any time
after the After the
expiration of a 20-calendar -day period beginning
after the
rule has been submitted to Congress and published
in the
Federal Register (if applicable), a Senate committee
can be
discharged of the further consideration of a
resolution joint resolution
disapproving the rule. This discharge occurs
when a
discharge petition is filed on the Senate floorsigned by at
least 30 Senators is
submitted on the floor.
Senate Floor Consideration. Once a CRA joint resolution
of disapproval is reported or discharged from Senate
committeethe relevant Senate committee
discharged, a non-debatable motion to proceed to consider
the joint disapproval resolution can then be made by any
Senator. If called up, the measure would be subject to up to
ten10 hours of debate, before being voted upon. No
amendments are permitted. All votes under the CRA are
simple majority votes.
Does a CRA joint resolution of disapproval have to be
filed in each chamber? No. The CRA does not require that
“companion” jointdisapproval resolutions of disapproval be introduced
in both
the House and the Senate. In some parliamentary
circumstances, however, having a companion measure
might be advantageous. Having a measure submitted in
both the House and the Senate would enable either chamber
to act first. Additionally, if the Senate passed a CRA joint
resolution of disapproval, the measure would be transmitted
to the House and held at the desk there. Because the Senate
measure is not referred to House committee, there is no way
for House supporters to force consideration of the
resolution through a discharge petition. If there is a House
companion, on the other hand, a discharge petition could be
filed on it, which, if successful, would ultimately result in
the Senate legislation being sent to the PresidentSenate. However, if the House acts
first on a House sponsored CRA joint resolution of
disapproval, the Senate can only consider the House
measure under the “fast track” procedures described above
if it first takes up its own resolution of disapproval. If there
is no Senate companion bill, reaching the House received
measure would effectively require unanimous consent.
Therefore, House sponsors that want the chance to have
their resolution be considered by the Senate under the
expedited CRA procedures should ensure that a companion
Senate disapproval resolution is introduced during the 60day introduction period.
What happens if Congress adjourns before the CRA
introduction or action periods end? If, within 60 session
(Senate) or legislative (House) days of session after a rule is
submitted, Congress adjourns its session sine die, the
periods to introduce and act on a disapproval resolution
described above “reset” in their entirety in the next session
of Congress, beginning in each chamber on the 15th day of
session after Congress reconvenes. This “carryover”
provision is intended to ensure that Congress will have the
full periods contemplated by the act to disapprove a rule
regardless of when it is received.
Effect of a CRA Resolution of
Disapproval
What happens when a CRA joint resolution of
disapproval is enacted? A rule that is the subject of an
enacted CRA joint resolution of disapproval “shall be
treated as though such rule had never taken effect.”
Can the agency promulgate the same rule again? In most
circumstances, the agency may not promulgate the same
rule again. A rule subject to an enacted CRA joint
resolution of disapproval “may not be reissued in
substantially the same form, and a new rule that is
substantially the same... may not be issued, unless the
reissued or new rule is specifically authorized by a law
enacted after the date of the joint resolution.” However, the
CRA does not define the scope of “substantially the same,”
what criteria should be considered, or who should make
such a determination.
Is judicial review available? The CRA states that “[n]o
What happens when a CRA joint resolution of
disapproval is enacted? A rule that is the subject of an
enacted CRA joint resolution of disapproval goes out of
effect immediately if the rule had already taken effect when
the resolution of disapproval is enacted and “shall be
treated as though such rule had never taken effect.” If the
rule has not yet gone into effect by the time the resolution
of disapproval is enacted, it will not take effect.
In addition, a rule subject to an enacted joint resolution of
disapproval “may not be reissued in substantially the same
form, and a new rule that is substantially the same ... may
not be issued, unless the reissued or new rule is specifically
authorized by a law enacted after the date of the joint
resolution.” The CRA does not define the scope of
“substantially the same” or state who should make such a
determination.
Is judicial review available? The CRA states that “no
determination, finding, action, or omission under this
chapter shall be subject to judicial review.” Two federal
appeals courts and several federal district A number of
courts have
examined this sectionprovision. The majority view,
adopted by most
of these courts, including some federal
appeals courts, interprets the provision as unambiguously
prohibiting judicial review of any question arising under the
CRA. Under this view, courts do not have the power to void
may not void rules based on
an agency’s noncompliance with the CRA.
The minority view, adopted by one district court, interprets
the provision more narrowly, concluding that it prevents
review of The minority
view concludes that the provision prevents review of
Congress’s determinations, findings, actions, or
omissions omissions
made under the CRA. Under this minority view,
a reviewing court has—but does not preclude review of
agency actions. At least one district court held that it had
the power to determine if an agency rule
should have been submitted to Congress under the CRA.
Previous Uses of the CRA
How many rules have been overturned using the CRA?
The CRA have been used to overturn a rule one time. In
November 2000, the Clinton Administration’s Occupational
Safety and Health Administration (OSHA) issued a rule on
ergonomics standards. The full 60-day congressional
consideration period did not elapse before the second
session of the 106th Congress adjourned, and therefore the
initiation and action periods reset in the new Congress. On
March 20, 2001, President George W. Bush signed into law
P.L. 107-5 to overturn the rule.
Alissa M. Dolan, adolan@crs.loc.gov, 7-8433 (legal issues)
Maeve P. Carey, mcarey@crs.loc.gov, 7-7775 (history and
agency compliance)
Christopher M. Davis, cmdavis@crs.loc.gov, 7-0656
(congressional procedures and day counts)
www.crs.gov | 7-5700
IF10023
submitted to Congress under the CRA.
CRS Products
CRS Report R43992, The Congressional Review Act
(CRA): Frequently Asked Questions, by Maeve P. Carey
and Christopher M. Davis
CRS Report R45248, The Congressional Review Act:
Determining Which “Rules” Must Be Submitted to
Congress, by Valerie C. Brannon and Maeve P. Carey
Maeve P. Carey, Specialist in Government Organization
and Management
Christopher M. Davis, Analyst on Congress and the
Legislative Process
https://crsreports.congress.gov
IF10023
The Congressional Review Act (CRA)
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
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reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
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