CRA Lookback Period Currently Estimated to Begin in August 1 Time Frame

CRA Lookback Period Currently Estimated to Begin in August 1 Time Frame

CRS INSIGHT Prepared for Members and Committees of Congress

INSIGHTi

CRA Lookback Period Currently Estimated to Begin in August 1 Time Frame

August 21, 2024

The Congressional Review Act (CRA, 5 U.S.C. §§801-808) is a tool that Congress can use to overturn recently finalized regulations. Enacted in 1996, the CRA requires that agencies submit covered rules to Congress and the Government Accountability Office (GAO) before they may take effect. Congress then has a limited period to use special fast-track parliamentary procedures to consider legislation overturning those rules.

The CRA has a feature that is sometimes referred to as its “lookback” mechanism. This mechanism provides Congress with additional time to use the CRA to review rules that were submitted toward the end of the previous session. This feature is most relevant at the end of a President’s Administration, as it may offer a new Congress and new President a brief window where expedited procedures are available to overturn rules issued by the outgoing Administration.

CRA Time Periods for Review

After a rule is received by Congress and published in the Federal Register, the CRA establishes specific time periods during which Congress can introduce and act on a joint resolution that, if enacted, would disapprove the rule. The CRA creates:

• an “introduction” period, lasting 60 calendar days (excluding periods when either house has adjourned by concurrent resolution), during which joint resolutions of disapproval can be introduced;

• a “discharge” period, which lasts for 20 calendar days, after which a petition signed by 30 Senators can be filed to discharge a Senate committee of the further consideration of a disapproval resolution; and

• a “Senate action” period, which lasts for 60 days of Senate session, during which a disapproval resolution can be considered in the Senate under “fast track” procedures that permit a simple majority to call up and reach a final vote on the joint resolution.

All three time periods begin upon receipt and publication of the rule and run simultaneously. For rules not submitted to Congress but nevertheless determined by GAO to be covered by the CRA’s definition of

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rule, under current practice, the three time periods commence once the GAO opinion is published in the Congressional Record.

The Lookback Mechanism

Section 801(d) of the CRA, known as the “lookback” mechanism, provides that if a rule is submitted to Congress with either fewer than 60 days of Senate session or fewer than 60 legislative days in the House before Congress adjourns its session sine die, a new period for congressional review of that rule becomes available in the following session of Congress. The provision is intended to prevent any Administration from waiting until just before Congress adjourns to submit rules to the House and Senate, denying them the full period contemplated by the CRA to review those rules.

For this purpose, a “lookback” rule is treated as if it had been submitted to Congress and published in the Federal Register on the 15th legislative day (House) or session day (Senate) of the succeeding session of Congress. This 15th day is sometimes described as the date of “constructive resubmission.” That is, the 15th such day of the new session is treated as if it were the first time the rule had ever been received and published, and that is the day the introduction, discharge, and Senate action periods described above begin anew on that rule.

Accordingly, rules submitted to Congress prior to both the 60th day of Senate session and the 60th House legislative day before the day of the adjournment are not subject to additional periods of lookback review. Rules submitted on or after the 60th such day before sine die adjournment in at least one chamber are subject to the renewed periods of congressional review. These “lookback” provisions are applied in the same way regardless of whether the session in question is the first or second session of a Congress, but, as noted, they have particular relevance in a second session that coincides with a presidential election.

Estimating the 2024 Lookback Date

It is not possible to know with certainty what date the 2024 lookback period began until the end of the 118th Congress. This is because to properly calculate the lookback period, one must know the date of sine die adjournment and know how many days each chamber met prior to adjourning.

One can estimate when the lookback is likely to fall. CRS estimates that Biden Administration rules submitted to the House or Senate on or after August 1, 2024, until the end of the second session of the 118th Congress, are currently likely to be subject to the CRA lookback provisions and will qualify for additional periods of CRA review in the first few months of the 119th Congress (2025). These renewed periods of review are likely to permit the introduction of disapproval resolutions aimed at such rules until late March 2025 and make the CRA “fast track” procedures available to consider such joint resolutions in the Senate until late May or early June 2025.

This estimate of the general start of the CRA lookback period for 2024 was determined by counting back from an estimated sine die adjournment of the second session in the respective chambers—assumed to be January 3, 2025—60 days of session in the Senate and 60 legislative days in the House, as projected by the 2025 announced calendars, then taking the earlier of the two dates. The estimate assumes that the chambers will meet as projected by these House and Senate announced calendars and that no concurrent resolutions of adjournment will be adopted, necessitating each chamber hold pro forma sessions during all extended absences. Should these assumptions change, the lookback date estimate would also change.

CRS day-count estimates are nonbinding. The Senate and House Parliamentarians are the sole definitive arbiters of the operation of the CRA mechanism, including its associated time periods, and should be consulted if a formal opinion is desired. CRS can provide congressional clients with day-count estimates of the action windows for specific rules and identify rules likely to be in the lookback period.

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Author Information

Christopher M. Davis Analyst on Congress and the Legislative Process

Maeve P. Carey

Specialist in Government Organization and Management

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 United States Government, are not subject to copyright protection in the United States. Any CRS Report may be 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 wish to copy or otherwise use copyrighted material.