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





February 5, 2019
The Congressional Review Act: Defining a “Rule” and
Overturning a Rule an Agency Did Not Submit to Congress

The Congressional Review Act (CRA) provides Congress
rulemaking procedures, but it also covers interpretive rules
with a mechanism to review federal agency actions that
and general statements of policy—categories that may
meet its definition of rule. Enacted in 1996 as part of the
encompass agency actions that are sometimes referred to as
Small Business Regulatory Enforcement Fairness Act, the
guidance documents.
CRA requires agencies to report the issuance of “rules” to
Congress and provides Congress with special fast-track
The CRA excludes three categories of actions from its
procedures under which to consider legislation that
broad definition of rule:
overturns a rule. A joint resolution of disapproval will
become effective once both houses of Congress pass a joint
1. Any rule of particular applicability;
resolution and it is signed by the President or if Congress
2. Any rule relating to agency management
overrides the President’s veto.
and personnel; and
3. Any rule of agency organization,
The category of rules the CRA covers is broader than the
procedure, or practice that does not
category of rules that are subject to the Administrative
Procedure Act’s (APA)
substantially affect the rights and
notice-and-comment requirements
obligations of non-agency parties.
for federal rulemaking. As such, some agency actions, such
as guidance documents, that may not be subject to notice-
In other words, if an agency action falls within the APA
and-comment rulemaking procedures could still be
definition of rule but also falls within one of these three
considered rules under the CRA and thus could be subject
exceptions, it would not be covered by the CRA. However,
to the CRA’s fast-track disapproval procedures.
some agency guidance documents that are exempt from
notice-and-comment procedures may fall within the APA’s
Even if an agency action falls under the definition of rule,
broad definition of rule and not within any of these
however, the CRA’s expedited procedures for considering
exceptions and therefore would be subject to the CRA.
legislation to overturn the rule become available only when
the agency submits the rule to Congress. In practice,
Thus, determining whether a particular agency action is a
agencies appear to be fairly consistent in submitting rules to
rule subject to the CRA entails a two-part inquiry: first,
Congress that have undergone notice-and-comment
whether the statement qualifies as a rule under the APA
rulemaking procedures and have been published in the
Section 551 definition and, second, whether the statement
Federal Register. Agencies are less consistent, however, in
falls within any of the CRA’s three exceptions.
submitting actions to Congress that did not go through
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 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 5 U.S.C.
Source: Congressional Research Service.
§804(3). The CRA adopts the broad definition of rule
contained in the APA but creates three exceptions. The
Following precedent interpreting the APA, the CRA does
APA defines a rule as “the whole or a part of an agency
not cover actions of the President, such as executive orders
statement of general or particular applicability and future
and presidential proclamations.
effect designed to implement, interpret, or prescribe law or
policy” (5 U.S.C. §551(4)). This definition includes actions
that are subject to the APA’s notice-and-comment
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The Congressional Review Act: Defining a “Rule” and Overturning a Rule an Agency Did Not Submit to Congress
Using the CRA on a Rule That an Agency submit their rules to Congress under the CRA as they are
Did Not Submit
required to, a record of each rule’s receipt is published in
The CRA requires agencies to submit a report containing a
the Congressional Record. In a sense, then, the publication
copy of the rule and information on the rule to Congress
of the GAO opinion in the Congressional Record fulfills
and to the Government Accountability Office (GAO). Once
this same purpose: notifying Congress that a rule is now
the rule is received, if Members wish to submit and take
available for review under the CRA.
action on a joint resolution of disapproval, they must do so
within certain time periods specified in the CRA.
Recent Developments Regarding the
Scope of the CRA
Under the text of the CRA, the expedited procedures
The 115th Congress was the first to enact a resolution of
become available only when Congress receives the rule.
disapproval overturning an agency guidance document that
Because submission of rules is key to Congress’s ability to
had neither been promulgated through the APA’s notice-
access the CRA’s special procedures, an agency’s failure to
and-comment procedures nor submitted to Congress under
submit a rule to Congress could frustrate Congress’s ability
the CRA. The guidance document, which the Bureau of
to review rules under the act. Furthermore, the CRA states
Consumer Financial Protection issued and was entitled
that “no determination, finding, action, or omission under
“Indirect Auto Lending and Compliance with the Equal
this chapter shall be subject to judicial review,” which
Credit Opportunity Act,” was subject to the GAO process
courts have usually interpreted to prohibit judicial review of
described above. GAO concluded that the document was a
a claim that an agency has failed to submit a rule under the
rule under the CRA in December 2017. President Trump
CRA. This provision makes it unlikely that a court would
signed the resolution of disapproval, S.J.Res. 57, on May
compel an agency to submit a rule under the CRA.
21, 2018.
To avoid Congress being denied its opportunity to review
Effect of Disapproval of Agency Action
rules under the CRA, however, a practice has developed
If a joint resolution of disapproval is submitted, both houses
that allows Congress to employ the law’s review
pass the resolution within the CRA-specified deadlines, and
mechanism even when an agency does not submit a rule for
the President signs it (or if Congress overrides the
review. That practice has involved seeking an opinion from
President’s veto), the CRA states that the “rule shall not
GAO on whether an agency action should have been
take effect (or continue).” In addition, the CRA provides
submitted under the CRA (i.e., whether the action is
that after a joint resolution of disapproval is enacted, an
covered by the CRA’s definition of rule).
agency may not issue the rule in “substantially the same
form” as the disapproved rule unless a subsequent law
GAO Determinations of Covered Agency Actions
specifically authorizes the reissued rule.
If a Member requests a GAO opinion and GAO concludes
that an action should have been submitted, under current
The effect of Congress disapproving a rule that was not
practice, Congress can then proceed with consideration of a
subject to notice-and-comment rulemaking procedures is
joint resolution of disapproval. While the House and Senate
not always clear, however, given that many such rules are
Parliamentarians are the sole definitive arbiters of
generally viewed as lacking legal effect in the first place.
procedural matters under the CRA—including the
Nevertheless, congressional action to overturn such an
determination of whether a joint resolution of disapproval is
agency action may communicate that Congress believes the
privileged under the CRA—it appears that, in recent
agency has exceeded the intended scope of its authority or
instances, the chamber Parliamentarians have generally
otherwise chosen a course of action that conflicts with
deferred to GAO’s opinions on whether an agency action is
congressional intent or preferences.
covered.
Other CRA Resources
Since the CRA was enacted in 1996, Members of Congress
For an in-depth discussion of the issues discussed in this In
have sought such an opinion from GAO on several
Focus, see CRS Report R45248, The Congressional Review
occasions. Copies of those opinions are available on GAO’s
Act: Determining Which “Rules” Must Be Submitted to
website. Those opinions are also listed and summarized in
Congress, by Valerie C. Brannon and Maeve P. Carey.
CRS Report R45248, The Congressional Review Act:
Determining Which “Rules” Must Be Submitted to
For a broad overview of the CRA, including an explanation
Congress. GAO describes the process for requesting a legal
of the CRA’s expedited procedures and associated
opinion in its publication Procedures and Practices for
timelines, see CRS Report R43992, The Congressional
Legal Decisions and Opinions, which is also available on
Review Act (CRA): Frequently Asked Questions, by Maeve
its website.
P. Carey and Christopher M. Davis.
Publication of GAO Determination in the
Maeve P. Carey, Specialist in Government Organization
Congressional Record
and Management
In recent years, the Senate appears to have considered the
Valerie C. Brannon, Legislative Attorney
publication in the Congressional Record of a GAO opinion
concluding that an agency action should have been
IF11096
submitted under the CRA as the trigger date for the CRA’s
fast-track disapproval procedures. By contrast, if agencies

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



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