The Congressional Review Act: Defining a “Rule” and Overturning a Rule an Agency Did Not Submit to Congress

The Congressional Review Act: Defining a “Rule” and Overturning a Rule an Agency Did Not Submit to Congress

Updated April 18, 2024
The Congressional Review Act: Defining a “Rule” and
Overturning a Rule an Agency Did Not Submit to Congress
The Congressional Review Act (CRA, 5 U.S.C. §§801-808)
prescribe law or policy” (5 U.S.C. §551(4)). This definition
provides Congress with a mechanism to review federal
includes actions that are subject to the APA’s notice-and-
agency actions that meet the CRA’s definition of rule.
comment rulemaking procedures. It also covers interpretive
Enacted in 1996, the CRA requires agencies to report the
rules and general statements of policy, and it can
issuance of rules to Congress and provides Congress with
encompass agency actions referred to as guidance
special fast-track procedures under which to consider
documents.
legislation that overturns a rule. A joint resolution of
disapproval will become effective once both houses of
The CRA excludes three categories of actions from its
Congress pass a joint resolution and it is signed by the
broad definition of rule:
President or if Congress overrides the President’s veto.
1. Any rule of particular applicability;
The category of rules the CRA covers is broader than the
2. Any rule relating to agency management
category of rules that are subject to the Administrative
and personnel; and
Procedure Act’s (APA) notice-and-comment requirements
3. Any rule of agency organization,
for federal rulemaking (at 5 U.S.C. §553). As such, some
procedure, or practice that does not
agency actions, such as guidance documents, that may not
substantially affect the rights and
be subject to notice-and-comment rulemaking procedures
obligations of non-agency parties.
could still be considered rules under the CRA and thus
In other words, if an agency action falls within the APA
could be subject to the CRA’s fast-track disapproval
definition of rule but also falls within one of these three
procedures.
exceptions, it would not be covered by the CRA. However,
some agency guidance documents that are exempt from
Even if an agency action falls under the definition of rule,
notice-and-comment procedures may fall within the APA’s
however, the CRA’s fast-track procedures for considering
broad definition of rule and not within any of these
legislation to overturn the rule become available only when
exceptions and therefore would be subject to the CRA.
the agency submits the rule to Congress. In practice,
agencies appear to be fairly consistent in submitting rules to
Thus, determining whether a particular agency action is a
Congress that have undergone notice-and-comment
rule subject to the CRA entails a two-part inquiry: first,
rulemaking procedures and have been published in the
whether the statement qualifies as a rule under the APA
Federal Register. Agencies are less consistent, however, in
Section 551 definition and, second, whether the statement
submitting actions to Congress that did not go through
falls within any of the CRA’s three exceptions.
notice-and-comment but nonetheless fall under the broad
scope of the CRA’s definition of rule. Thus, questions have
arisen as to how Members can avail themselves of the
CRA’s special procedures if the agency has not submitted
the action.
This CRS In Focus briefly describes what types of agency
actions are subject to the CRA by providing an overview of
the statutory definition of rule. It then explains how
Congress can use the CRA to review covered rules that
agencies did not submit to Congress.
Types of Agency Actions the CRA
Covers
For an agency action to be eligible for review under the
CRA, it must qualify as a rule as defined in Title 5, Section
804(3), of the U.S. Code. The CRA adopts the broad

Source: CRS.
definition of rule contained in the APA but creates three
exceptions. The APA defines a rule as “the whole or a part
Following precedent interpreting the APA, the CRA applies
of an agency statement of general or particular applicability
only to final agency action (see CRS In Focus IF12386,
and future effect designed to implement, interpret, or
Defining Final Agency Action for APA and CRA Review, by
https://crsreports.congress.gov

The Congressional Review Act: Defining a “Rule” and Overturning a Rule an Agency Did Not Submit to Congress
Valerie C. Brannon). Accordingly, the CRA does not cover
concluding that an agency action should have been
actions of the President, such as executive orders and
submitted under the CRA as the trigger date for the CRA’s
presidential proclamations.
fast-track disapproval procedures. When agencies submit
rules to Congress under the CRA as required under Title 5,
Using the CRA on a Rule That an Agency Section 801(a), a record of each rule’s receipt is published
Did Not Submit
in the Executive Communications portion of the
The CRA requires agencies to submit a report containing a
Congressional Record. The publication of the GAO opinion
copy of each covered rule and information on the rule to
in the Congressional Record fulfills this same purpose:
Congress and to the Government Accountability Office
notifying Congress that a rule is now available for review
(GAO) before the rule may take effect (5 U.S.C. §801(a)).
under the CRA.
Once the rule is received, Members may introduce and take
action on a joint resolution of disapproval, provided they do
The 115th Congress (2017-2018) was the first to enact a
so within certain time periods specified in the CRA.
resolution of disapproval overturning an agency guidance
document that had neither been promulgated through the
Under the text of the CRA, the fast-track procedures
APA’s notice-and-comment procedures nor submitted to
become available only after Congress has received the rule.
Congress under the CRA. The guidance document, which
Because Congress’s ability to access the CRA’s special
the Bureau of Consumer Financial Protection issued and
procedures hinges on the rule having been received, an
was entitled “Indirect Auto Lending and Compliance with
agency’s failure to submit a rule to Congress could frustrate
the Equal Credit Opportunity Act,” was subject to the GAO
Congress’s ability to review rules under the act.
process described above (S.J.Res. 57).
Furthermore, the CRA states that “no determination,
finding, action, or omission under this chapter shall be
Effect of Disapproval of a Rule
subject to judicial review” (5 U.S.C. §805). Most courts to
If a joint resolution of disapproval is introduced, both
consider this provision have interpreted it to prohibit
houses pass the resolution within the CRA-specified
judicial review of claims that an agency violated the CRA.
deadlines, and the President signs it (or if Congress
This provision thus makes it unlikely that a court would
overrides the President’s veto), the CRA states that the
review an agency’s failure to submit a rule, much less
“rule shall not take effect (or continue)” (5 U.S.C.
compel the agency to submit the rule.
§801(b)(1)). If the rule already went into effect, it must be
treated as though it “had never taken effect” (5 U.S.C.
To avoid Congress being denied its opportunity to review
§801(f)). In addition, the CRA provides that after a joint
rules under the CRA, however, a practice has developed
resolution of disapproval is enacted, an agency may not
outside the statute that allows Congress to employ the law’s
issue the rule in “substantially the same form” as the
review mechanism even when an agency has not submitted
disapproved rule unless a subsequent law specifically
a rule for review. That practice has involved seeking an
authorizes the reissued rule (5 U.S.C. §801(b)(2)).
opinion from GAO on whether an agency action should
have been submitted under the CRA (i.e., whether the
Other CRA Resources
action is covered by the CRA’s definition of rule).
For an in-depth discussion of the issues discussed in this In
Focus, see CRS Report R45248, The Congressional Review
GAO Determinations of Covered Agency Actions
Act: Determining Which “Rules” Must Be Submitted to
If a Member requests a GAO opinion and GAO concludes
Congress, by Valerie C. Brannon and Maeve P. Carey. For
that an action should have been submitted, under current
a related discussion of what constitutes final agency action
practice, Congress can then proceed with consideration of a
for purposes of CRA review, see CRS In Focus IF12386,
joint resolution of disapproval under the CRA’s special
Defining Final Agency Action for APA and CRA Review, by
procedures. While the House and Senate Parliamentarians
Valerie C. Brannon.
are the sole definitive arbiters of procedural matters under
the CRA—including the determination of whether a joint
For a broad overview of the CRA, including an explanation
resolution of disapproval is privileged under the CRA—it
of the CRA’s fast-track procedures and associated
appears that the chamber Parliamentarians have generally
timelines, as well as court opinions interpreting the CRA’s
deferred to GAO’s opinions on whether an agency action is
bar on judicial review, see CRS Report R43992, The
covered.
Congressional Review Act (CRA): Frequently Asked
Questions, by Maeve P. Carey and Christopher M. Davis.
Since the CRA was enacted in 1996, Members of Congress
For a shorter overview, see CRS In Focus IF10023, The
have sought such an opinion from GAO on several dozen
Congressional Review Act (CRA): A Brief Overview, by
occasions. Copies of those opinions are available on GAO’s
Maeve P. Carey and Christopher M. Davis.
website. GAO describes the process for requesting a legal
opinion in its publication GAO’s Protocols for Legal
Maeve P. Carey, Specialist in Government Organization
Decisions and Opinions.
and Management
Valerie C. Brannon, Legislative Attorney
In recent years, the Senate appears to have considered the
publication in the Congressional Record of a GAO opinion
IF11096
https://crsreports.congress.gov

The Congressional Review Act: Defining a “Rule” and Overturning a Rule an Agency Did Not Submit to Congress

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