The Congressional Review Act (CRA): Frequently Asked Questions
Summary
The Congressional Review Act (CRA) is a tool that Congress may use to overturn rules issued by
federal agencies. The CRA was included as part of the Smal Business Regulatory Enforcement
Fairness Act (SBREFA), which was signed into law on March 29, 1996. The CRA requires
agencies to report on their rulemaking activities to Congress and provides Congress with a special
set of procedures under which to consider legislation to overturn those rules.
Under the CRA, before a rule can take effect, an agency must submit a report to each house of
Congress and the comptroller general containing a copy of the rule; a concise general statement
describing the rule, including whether it is a major rule; and the proposed effective date of the
rule. After receiving the report, Members of Congress have specified time periods during which
they must submit and act on a joint resolution of disapproval to take advantage of the CRA’s
special “fast track” procedures. If both houses pass the resolution, it is sent to the President for
signature or veto. If the President were to veto the resolution, Congress could vote to override the
veto.
If a joint resolution of disapproval is submitted within the CRA-specified deadline, passed by
Congress, and signed by the President, the CRA states that the disapproved rule “shal not take
effect (or continue).” The rule would be deemed not to have had any effect at any time, and even
provisions that had become effective would be retroactively negated.
Furthermore, if a joint resolution of disapproval is enacted, the CRA provides that a rule may not
be issued in “substantial y the same form” as the disapproved rule unless it is specifical y
authorized by a subsequent law. The CRA does not define what would constitute a rule that is
“substantial y the same” as a nullified rule. Additional y, the statute prohibits judicial review of
any “determination, finding, action, or omission under” the CRA.
Since its enactment, the CRA has been used to overturn a total of 20 rules: 1 in the 107th Congress
(2001-2002), 16 in the 115th Congress (2017-2018), and 3 in the 117th Congress (2021-2022).
This report discusses the most frequently asked questions received by the Congressional Research
Service about the CRA. It addresses questions relating to the applicability of the act, the
requirements for submission of rules, the procedural requirements that must be met for Congress
to file and act upon a CRA joint resolution of disapproval, and the effects of an enacted CRA joint
resolution of disapproval. This report also discusses potential advantages and disadvantages of
using the CRA to disapprove rules, as wel as other options available to Congress to conduct
oversight of agency rulemaking.
For further questions not addressed here, please contact Maeve P. Carey (questions regarding
history, scope, and agency compliance with the CRA), Christopher M. Davis (questions regarding
congressional procedures and day counts under the CRA), or Valerie C. Brannon (questions
regarding legal issues under the CRA).
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Contents
Overview of the Congressional Review Act (CRA) . 1
What Is the CRA. 1
What Are Advantages and Disadvantages of Using the CRA. 1
How Many Rules Have Been Overturned Using the CRA? . 6
Definitions Under the CRA . 6
What Is a Covered Rule Under the CRA? . 6
Does the CRA Apply to Guidance Documents? . 7
Does the CRA Apply to Interim Final Rules? . 8
Does the CRA Apply to Proposed Rules? . 8
Does the CRA Apply to Executive Orders. 9
What Is a Major Rule Under the CRA? . 9
What Happens When a Rule Is Designated as Major? . 10
Who Determines Whether a Rule Is Major. 11
Does the CRA Apply to Non-Major Rules. 11
Agency Submission of Rules . 12
When Does an Agency Have to Submit a Rule to Congress and GAO? . 12
How Do I Check If a Rule Has Been Submitted Under the CRA. 12
What Happens If an Agency Does Not Submit a Rule to Congress. 12
Congressional Procedures Under the CRA . 14
How Do I Introduce a Joint Resolution of Disapproval. 14
Can a Joint Resolution of Disapproval Contain a Preamble. 15
How Is a Joint Resolution of Disapproval Different from a Bill. 15
Can a Joint Resolution of Disapproval Be Used to Invalidate Part of a Rule or
More Than One Rule? . 15
What Are the CRA “Fast Track” Procedures? . 15
What Are the CRA “Fast Track” Procedures for Senate Committee
Consideration? . 16
What Are the CRA “Fast Track” Procedures for Senate Floor Consideration? . 16
For How Long Are the “Fast Track” Procedures Available. 17
Do Disapproval Resolutions Have to Be Submitted in Both Chambers of Congress? . 17
What Happens If Congress Adjourns Before the CRA Initiation or Action Periods
Conclude. 18
Is It Possible to Ascertain When the Periods for Submission, Discharge, and Action
on a Resolution to Disapprove a Given Rule Begin and End. 18
Effect of a Resolution of Disapproval . 18
What Is the Effect of Enacting a CRA Joint Resolution of Disapproval. 18
When Is a New Rule “Substantially the Same” as a Disapproved Rule? . 19
How Is the “Substantially the Same” Prohibition Enforced? . 21
What Is the Effect of a CRA Joint Resolution Disapproving an Amendment to a
Previously Issued Rule? . 22
What Is the Effect of a CRA Joint Resolution Disapproving a Rule that Repeals a
Previous Rule? . 22
What Happens If a Rule That Is Already Effective Is Overturned. 23
Is There Judicial Review Under the CRA? . 23
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What Other Tools Are Available to Congress for Conducting Oversight of Federal
Regulations. 26
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The Congressional Review Act (CRA): Frequently Asked Questions
Overview of the Congressional Review Act (CRA)
What Is the CRA?
The Congressional Review Act (CRA) is a tool that Congress may use to pass legislation
overturning a rule issued by a federal agency. When Congress passes a law, it often grants
rulemaking authority to federal agencies to implement provisions of the law. That delegation of
rulemaking authority, and the rules issued by federal agencies under this authority, is a crucial
component of the policymaking process. Congress has an interest in ensuring that federal
agencies, when issuing rules, are faithful to congressional intent. To conduct oversight of federal
agency actions, Congress has a number of tools available, including the CRA.1
The CRA was enacted in 1996 as part of the Smal Business Regulatory Enforcement Fairness
Act.2 Under the CRA, before a rule can take effect, an agency must submit the rule to Congress
and the Government Accountability Office (GAO).3 Upon receipt of the rule by Congress,
Members of Congress have a specified time period during which to submit and take action on a
joint resolution of disapproval overturning the rule. If both houses pass the joint resolution, it is
sent to the President for signature or veto. If the President were to veto the joint resolution,
Congress could vote to override the veto. Enactment of the joint resolution would take the rule
out of effect or prevent it from going into effect, and the agency would be prohibited from issuing
a rule that is “substantial y the same” without further authorization from Congress.4
What Are Advantages and Disadvantages of Using the CRA?
The CRA contains several notable features that could be seen as advantages and/or disadvantages
to disapproving rules using the CRA, rather than through regular legislation.
Procedural
The most notable feature of the CRA is its special set of parliamentary procedures for considering
a joint resolution disapproving an agency’s final rule. These procedures make it easier for
Congress to pass a joint resolution of disapproval, particularly in the Senate. Perhaps most
significantly, when a joint resolution of disapproval meets certain criteria, it cannot be filibustered
in the Senate. In addition, when 20 calendar days have elapsed after the receipt and publication of
a rule, a petition, signed by 30 Senators, can be presented on the floor to discharge a Senate
committee of the further consideration of a disapproval resolution.5 Once the committee is
discharged, any Senator can make a nondebatable motion to proceed to consider the disapproval
resolution. Should a majority of the Senate vote to consider the disapproval resolution, debate on
it is limited, and a final vote would be al but guaranteed.6
Not al of the CRA’s procedures are advantageous, however—a joint resolution of disapproval
may stil face some procedural chal enges. First, one might argue that the likelihood of a
1 For a broader discussion of Congress’s oversight tools, see CRS Report RL30240, Congressional Oversight Manual;
and CRS Report R45442, Congress’s Authority to Influence and Control Executive Branch Agencies, by T odd Garvey
and Daniel J. Sheffner.
2 T itle II, Subtitle E, P.L. 104-121, 5 U.S.C. §§601 et seq.
3 5 U.S.C. §801(a)(1)(A).
4 5 U.S.C. §801(b)(2).
5 5 U.S.C. §802(c).
6 5 U.S.C. §802(d).
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presidential veto (discussed in detail below) means that most CRA disapproval resolutions are
likely to be subject to a de facto supermajority requirement. Second, the CRA does not establish
any “fast track” procedures for initial consideration of a disapproval resolution in the House of
Representatives. As a result, unless the House majority party is wil ing to schedule the measure
for consideration, in al likelihood it wil not be considered. Third, unlike the regular legislative
process, which is available to Congress at any time, the CRA disapproval mechanism is available
in the Senate only during certain statutorily specified time periods. Fourth, calculating the periods
established by the CRA for submitting and acting on a disapproval resolution can be complicated,
especial y in cases where the act provides for additional submission and action periods in a
subsequent session of Congress. Fifth, unlike regular legislation, which can overturn or amend
more than one rule at time, each CRA disapproval resolution can be aimed only at a single final
rule in its entirety. Multiple disapproval resolutions cannot be “bundled” together and stil
maintain their privileged parliamentary status.7 Relatedly, because the stipulated text of CRA
disapproval resolutions refer to a rule as a whole, the law does not give Congress the opportunity
to expressly disapprove only specific aspects of a rule. Final y, if either chamber rejects a CRA
disapproval resolution on a major rule, it appears that it could have the effect of putting a
regulation in force sooner than would otherwise be the case.8
Prohibition on Issuance of “Substantially the Same” Rules
If a joint resolution of disapproval is enacted, it not only invalidates the rule in question; it also
bars the agency from issuing another rule in “substantial y the same form” as the disapproved rule
unless Congress authorizes the agency to do so in a subsequent law.9 Thus, enactment of a joint
resolution of disapproval has the immediate effect of taking the rule out of effect or preventing it
from taking effect, but it also has a more long-term effect on the agency’s ability to issue a
substantial y similar rule. (See “When Is a New Rule “Substantial y the Same” as a Disapproved
Rule?” below for more discussion.) For Members who want to disapprove a rule, this restriction
on future agency behavior could be seen as an advantage of using the CRA to overturn the rule.
On the other hand, some might argue that the prohibition on “substantial y the same” rules is
actual y a disadvantage of the CRA, as it creates uncertainty and could restrict the agency’s
ability to act going forward. This can potential y create a difficult situation for an agency if
Congress uses the CRA to disapprove rules that were specifical y required by law, as the CRA
overturns the rule itself but does not remove the underlying statutory requirement for the rule.10
7 At the end of the 114th Congress and at the start of the 115th Congress, the House of Representatives passed legislation
to amend the CRA and allow the bundling of disapproval resolutions in this way for “midnight rules”—rules issued late
in the final year of an outgoing administration. Companion bills in the Senate were not adopted. See the Midnight
Rules Relief Act, H.R. 21 (115th Congress), H.R. 5982 (114th Congress), S. 34 (115th Congress), and S. 3483 (114th
Congress).
8 5 U.S.C. §801(a)(5). In practice, however, it is unclear how or whether this would occur. See “ What Happens When a
Rule Is Designated as Major?” below.
9 5 U.S.C. §801(b)(2). For a discussion of the prohibition on promulgating another substantially similar rule, see “ When
Is a New Rule “Substantially the Same” as a Disapproved Rule?” below; CRS Report R46690, Congressional Review
Act Issues for the 117th Congress: The Lookback Mechanism and Effects of Disapproval , by Maeve P. Carey and
Christopher M. Davis; and CRS Insight IN10660, What Is the Effect of Enacting a Congressional Review Act
Resolution of Disapproval?, by Maeve P. Carey.
10 T o date, two final rules have been reissued after having been overturned under the CRA: a Department of Labor
(DOL) rule and a Securities and Exchange Commission (SEC) rule. Both of those reissued rules were statutorily
required. For more information, see “ When Is a New Rule “Substantially the Same” as a Disapproved Rule?” below.
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Requirement for Reporting to Congress on Rulemaking Activities
Not only can Congress use the CRA to overturn agency rules, but certain provisions of the CRA
may be viewed as helping to increase congressional awareness of federal agency actions. The
requirement for agencies to submit their rules to Congress,11 and the subsequent referral of each
rule to the committee of jurisdiction,12 functions as a notification mechanism through which
committees and Members can be made aware of agencies’ rulemaking activities. Although
Members may be likely to become aware of high-profile rules through other means, the referral of
each rule upon receipt in Congress provides an additional notification for rules that may be of a
more narrow interest.
Additional Information Publicly Available on Federal Rules
Another benefit of the CRA, for Members of Congress as wel as for the public, is that it has
resulted in a publicly available database of rules and set of reports on major rules compiled by
GAO. Since the CRA’s enactment, GAO has posted a record of receipt of the rules agencies
submitted under the CRA to a database on its website.13 The database can be used to search for
final rules by elements such as the title, issuing agency, type of rule (major or non-major), and
effective date. The website also contains GAO’s reports, required under the CRA and discussed
below, on major rules. Each major rule report contains summary information and an assessment
of the agency’s completion of certain cost-benefit and other analytical requirements.14
Drawing Attention to a Rule
Another potential advantage of the CRA is that it provides a method for Members of Congress to
draw attention to a particular rule. The required language of a joint resolution of disapproval,
which is stipulated in the CRA, provides for a relatively straightforward process through which a
Member can make clear his or her opposition to a rule.15 Indeed, while the CRA has been used to
overturn 20 rules, many more joint resolutions of disapproval have been introduced since the
CRA’s enactment. Members of Congress have introduced wel over 200 joint resolutions of
disapproval under the CRA, pertaining to more than 130 rules.16
In addition, the threat of submission or passage of a disapproval resolution may provide a
mechanism through which a Member can pressure an agency to reach a particular outcome, either
related to that specific rule or on another matter.17 Prior to the 115th Congress, Congress had
rarely used the CRA to disapprove a rule, so arguably, the CRA may not have been a credible
threat to agencies and thus was not likely to influence agency behavior. However, Congress’s
11 5 U.S.C. §801(a)(1)(A).
12 5 U.S.C. §801(a)(1)(C).
13 GAO’s federal rules database is available at https://www.gao.gov/legal/other-legal-work/congressional-review-act.
14 See “What Happens When a Rule Is Designated as Major?” for more information on these reports.
15 See “How Do I Introduce a Joint Resolution of Disapproval?” below for the stipulated text.
16 Data obtained by CRS from Congress.gov based on bill text searches using the CRA’s stipulated text. A list of all
joint resolutions of disapproval introduced under the CRA can be provided to congressional clients upon request from
the authors of this report.
17 See Allan Freedman, “GOP’s Secret Weapon Against Regulations: Finesse,” CQ Weekly, September 5, 1998; and
Steven J. Balla, “ Organization and Congressional Review of Agency Regulations,” Journal of Law, Econom ics, and
Organization, vol. 16, no. 2 (October 2000), pp. 426 -429.
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more frequent use of the CRA in recent years could suggest otherwise—particularly for
Administrations that may be nearing the end of a term.18
Increased Oversight of Independent Regulatory Agencies
For two reasons, the CRA may present an opportunity for more political control over independent
regulatory agencies’ rulemaking activities. First, as discussed more below (see “Presidential
Veto/De Facto Supermajority Requirement”), enactment of a CRA resolution of disapproval is
considered to be unlikely in most circumstances, because a President would be expected to veto a
joint resolution disapproving a rule issued by the President’s own Administration. However, a
President may be more likely to sign a joint resolution disapproving a rule that has been issued by
an independent regulatory agency, a type of agency over which the President has less control.19
Unlike executive agencies, independent regulatory agencies do not submit their regulations to the
Office of Management and Budget (OMB) for review under Executive Order 12866, which seeks
in part to ensure that federal agencies’ regulations are in line with the President’s policy
priorities.20 As such, the independent regulatory agencies’ regulations are considered to be more
removed from presidential control than executive agencies’ regulations, because the President—
through OMB—has less influence over the content of their rules. The CRA presents an
opportunity for Congress and the President to exercise more control over those agencies’ rules by
overturning them.
Second, under the CRA, the administrator of the Office of Information and Regulatory Affairs
(OIRA) in OMB is responsible for determining which rules are “major.” Prior to 2019, OIRA had
largely deferred to independent regulatory agencies in making these determinations about their
own rules.21 In April 2019, the Trump Administration announced a procedural change for the
independent regulatory agencies, which had previously not submitted their rules to OMB for
review.22 Under the 2019 policy, al agencies, including independent regulatory agencies, are
required to submit their regulations to OIRA for a determination of whether the rules met the
CRA’s statutory definition of major. Arguably, this procedure potential y provides a point of
leverage for the White House (through OMB and OIRA) over independent regulatory agencies’
rules if OIRA chooses to use this mechanism to influence the substance of the rules in any way.23
18 See section below entitled “ Presidential Veto/De Facto Supermajority Requirement” for a discussion of why the
CRA is generally more effective for overturning rules issued at the end of a President’s term.
19 Congress created a number of federal agencies with certain characteristics to make them independent from the
President and, in some cases, from Congress itself. T hose agencies, generally referred to as independent regulatory
agencies or independent regulatory commissions, are listed at T itle 44, Section 3502(5) of the United States Code and
include agencies such as the Federal Reserve Board and the Securities and Exchange Commission. T he President
generally has limited ability to remove officials from those agencies, for example, and those agencies’ budget requests
may be submitted directly to Congress without modification by the President. In addition, some agencies may receive
their funding outside the annual appropriations process. For a discussion of th e characteristics that make a subset of
those agencies independent from Congress and the President, see CRS Report R43391, Independence of Federal
Financial Regulators: Structure, Funding, and Other Issues, by Henry B. Hogue, Marc Labonte, and Baird Webel.
20 Executive Order 12866, “Regulatory Planning and Review,” 58 Federal Register 51735, October 4, 1993.
21 Cass R. Sunstein, “T rump White House Seeks New Power Over Agencies,” Bloomberg, April 23, 2019,
https://www.bloomberg.com/opinion/articles/2019-04-23/trump-seeks-more-control-of-fed-sec-and-other-agencies. See
also “Who Determines Whether a Rule Is Major?” below for further discussion.
22 Russell T . Vought, acting director, OMB, “Guidance on Compliance with the Congressional Review Act” (M-19-
14), memorandum to the heads of executive departments and agencies, April 11, 2019, https://www.whitehouse.gov/
wp-content/uploads/2019/04/M-19-14.pdf. See also CRS Insight IN11122, OMB Issues New CRA Guidance,
Potentially Changing Relationship with Independent Agencies, by Maeve P. Carey.
23 See CRS Insight IN11122, OMB Issues New CRA Guidance, Potentially Changing Relationship with Independent
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The status of this 2019 policy under the Biden Administration is unclear, but no rescission or
change to the policy has been publicly announced.
Failure of a CRA Joint Resolution of Disapproval Could Make a Major Rule
Take Effect Faster Than Otherwise Allowed Under the CRA
In the case of some major rules, it appears that use of the CRA mechanism could make the rule go
into effect more quickly than it otherwise would. Under the requirements of the CRA, agencies
must delay the effective date of major rules by at least 60 days.24 This is essential y an expansion
of the Administrative Procedure Act’s (APA) requirement that agencies delay the effective date of
most rules by at least 30 days.25 Should either chamber choose to consider a joint resolution
disapproving a major rule and then vote to reject the resolution, under one provision of the CRA,
the rule in question could go into force immediately, notwithstanding any layover period in its
effective date established by the CRA.26 No rule would go into effect under such a scenario,
however, until the effective date set by the agency in the rule itself has been reached.
Disapproval of an Entire Rule
A CRA resolution can be used only to invalidate a single final rule in its entirety. A CRA joint
resolution of disapproval cannot be used to modify or restructure a rule in order to make it
acceptable to Congress. If Congress were to use the regular legislative process instead of the
CRA, however, Congress could invalidate part of a rule or instruct the agency to amend or repeal
part of a rule. However, regular legislation would not be eligible for the same expedited
procedures in the Senate in the same way a CRA resolution of disapproval would. It would not
enjoy expedited procedures for floor consideration and might be subject to filibuster.
Presidential Veto/De Facto Supermajority Requirement
One of the biggest chal enges for using the CRA to overturn rules is that a President can general y
be expected to veto a joint resolution of disapproval attempting to overturn a rule issued by the
President’s own Administration. A joint resolution of disapproval requires the signature of the
President to become law—a very unlikely prospect if the President’s own Administration issued
the rule. If the President were to veto the measure, Congress could attempt to override the veto. A
two-thirds majority of both houses of Congress is required to override a President’s veto. This
creates a de facto supermajority requirement for a CRA joint resolution to be enacted in most
cases.
Agencies, by Maeve P. Carey. See also Bridget C. E. Dooling, “ How Independent Are Government Agencies? OMB’s
Move on ‘Major’ Rules May T ell Us,” The Hill, April 13, 2019, https://thehill.com/opinion/white-house/438756-how-
independent -are-government-agencies-ombs-move-on-major-rules-mat; and William Funk, “ OMB Leveraging the
CRA to Add to Its Oversight of Independent Regulatory Agencies,” Yale Journal on Regulation Notice and Comment
Blog, April 18, 2019, https://yalejreg.com/nc/omb-leveraging-the-cra-to-add-to-its-oversight -of-independent -
regulatory-agencies-by-william-funk/.
24 5 U.S.C. §801(a)(3).
25 Under the APA, agencies must generally allow at least 30 days to elapse between the publication of a rule and its
effective date, though there are some exceptions (5 U.S.C. §553(d)). In many cases, agencies allow additional time
beyond the required 30 days before making a rule effective. Similarly, with major rules, agencies often allow for more
than the 60 days required under the CRA.
26 5 U.S.C. §801(a)(5), states, “Notwithstanding paragraph (3), the effective date of a rule shall not be delayed by
operation of this chapter beyond the date on which either House of Congress votes to reject a joint resolution of
disapproval under section 802.”
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During a transition period following the inauguration of a new President of a different party than
the outgoing President, however, the CRA is more likely to be used successful y.27 Because of the
structure of the time periods during which Congress can take action under the CRA, there is a
period at the beginning of each new Administration during which rules issued near the end of the
previous Administration are eligible for consideration under the CRA.28 This period is sometimes
referred to as a “lookback” period.29 The vast majority of the instances in which the CRA was
used to overturn a rule took place during such a period.
How Many Rules Have Been Overturned Using the CRA?
As of November 12, 2021, the CRA had been used to overturn a total of 20 rules. One of those
rules was overturned in the 107th Congress (2001-2002), 16 were overturned in the 115th Congress
(2017-2018), and 3 were overturned in the 117th Congress (2021-2022). For a list of the 20
overturned rules, see Appendix A.
Definitions Under the CRA
What Is a Covered Rule Under the CRA?
The CRA adopts the definition of rule that appears in Section 551 of the APA, with three
exceptions.30 Section 551 of the APA defines rule as
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 or describing the
organization, procedure, or practice requirements of an agency.31
The first exception in the CRA definition of rule is for rules of particular applicability, including a
rule that “approves or prescribes for the future rates, wages, prices, services, or al owances
therefor, corporate or financial structures, reorganizations, mergers, or acquisitions thereof, or
accounting practices or disclosures bearing on any of the foregoing.”32 Second, the CRA’s
definition of rule excludes “any rule relating to agency management or personnel.”33 Final y, the
CRA also excludes “any rule of agency organization, procedure, or practice that does not
substantial y affect the rights or obligations of non-agency parties.”34
27 See CRS Report R46690, Congressional Review Act Issues for the 117th Congress: The Lookback Mechanism and
Effects of Disapproval, by Maeve P. Carey and Christopher M. Davis.
28 T he rules issued near the end of an Administration are often referred to as “midnight rules.” See CRS Insight
IN11539, Presidential Transitions: Midnight Rulem aking , by Maeve P. Carey; and CRS Report R42612, Midnight
Rulem aking: Background and Options for Congress, by Maeve P. Carey, for more information about the history,
practice, and oversight of midnight rulemaking.
29 For information on the lookback mechanism, see CRS Report R46690, Congressional Review Act Issues for the
117th Congress: The Lookback Mechanism and Effects of Disapproval, by Maeve P. Carey and Christopher M. Davis.
30 5 U.S.C. §804(3). For an in-depth discussion of the definition of rule under the CRA, see CRS Report R45248, The
Congressional Review Act: Determining Which “Rules” Must Be Submitted to Congress, by Valerie C. Brannon and
Maeve P. Carey.
31 5 U.S.C. §551(4).
32 5 U.S.C. §804(3)(A). T he CRA definition of rule does not specifically exclude facilities or appliances, which are also
listed in the APA definition of a rule (5 U.S.C. §551(4)).
33 5 U.S.C. §804(3)(B).
34 5 U.S.C. §804(3)(C).
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Notably, the CRA adopts the broadest definition of rule contained in the APA, which is broader
than the category of rules subject to the APA’s notice-and-comment rulemaking procedures.35
Therefore, some agency actions that are not subject to notice-and-comment rulemaking
procedures under the APA may stil be considered a rule under the CRA.
For a more detailed discussion of what agency actions are considered rules and are eligible to be
overturned under the CRA, see CRS Report R45248, The Congressional Review Act:
Determining Which “Rules” Must Be Submitted to Congress, by Valerie C. Brannon and Maeve
P. Carey.
Does the CRA Apply to Guidance Documents?
The CRA applies to some guidance documents and other agency actions taken outside of the
APA’s notice-and-comment rulemaking procedures. Because the broad scope of the CRA’s
definition of rule includes some agency actions such as policy statements and interpretive rules—
which are sometimes referred to as guidance documents—the CRA may be available to overturn
those types of actions. Whether any particular agency action is a rule covered by the CRA
depends on the specific facts involved—that is, the nature of the action and its effect.36
A practical chal enge for using the CRA to overturn guidance documents is that agencies often do
not submit covered guidance documents to Congress, despite the CRA’s requirement for them to
do so. However, in recent years, Congress has developed a practice under which it can stil review
covered actions under the CRA, even if the action was not submitted under the statute. For a
discussion of how the CRA may stil be used in these instances, see “What Happens If an Agency
Does Not Submit a Rule to Congress?” below.37
Although the CRA was clearly intended to cover some agency guidance documents,38 the
practical effect of overturning any particular guidance document may not always be clear. In
particular, the effect of a disapproval resolution may be limited because guidance documents, by
their nature, already lack the force of law or any legal effect.39
35 5 U.S.C. §553. Generally, the requirements for notice-and-comment rulemaking procedures do not apply to
“interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” or “when the
agency for good cause finds … that notice and public procedure thereon are impracticable, unnecessary, or contrary to
the public interest.”
36 For an in-depth discussion of the definition of rule under the CRA and the types of agency actions that are covered,
see CRS Report R45248, The Congressional Review Act: Determ ining Which “Rules” Must Be Subm itted to Congress,
by Valerie C. Brannon and Maeve P. Carey .
37 See also CRS In Focus IF11096, The Congressional Review Act: Defining a “Rule” and Overturning a Rule an
Agency Did Not Subm it to Congress, by Maeve P. Carey and Valerie C. Brannon; and CRS Report R45248, The
Congressional Review Act: Determining Which “Rules” Must Be Submitted to Congress, by Valerie C. Brannon and
Maeve P. Carey.
38 A statement inserted into the Congressional Record after the CRA’s enactment by its sponsors states that the CRA
was intended to encompass some agency statements that would not be subject to the APA’s notice-and-comment
rulemaking requirements: “T he committees intend this chapter to be interpreted broadly with regard to the type and
scope of rules that are subject to congressional review. T he term ‘rule’ in subsection 804(3) begins with the definition
of a ‘rule’ in subsection 551(4) and excludes three subsets of rules that are modeled on APA sections 551 and 553. T his
definition of a rule does not turn on whether a given agency must normally comply with the notice -and-comment
provisions of the APA…. T he definition of ‘rule’ in subsection 551(4) covers a wide spectrum of activities.”
Representative Henry Hyde, Congressional Record, daily edition, vol. 142, (April 19, 1996), p. E578.
39 In determining whether an agency action is subject to the notice-and-comment rulemaking requirements in the APA,
reviewing courts may ask whether an agency action such as a guidance document has the force of law. If it lacks the
force of law, it likely will not be subject to these procedures. See, for example, Gen. Elec. v. EPA, 290 F.3d 377, 382
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Does the CRA Apply to Interim Final Rules?
Yes. Interim final rules are considered final rules that carry the force and effect of law, and an
interim final rule that satisfies the CRA’s definition of rule wil be subject to the CRA.40 Agencies
use interim final rules to promulgate rules without providing the public with notice and an
opportunity to comment before publication of the final rule, while offering the possibility of
modifying the rule following a post-promulgation comment period.41 Agencies must general y
assert a valid “good cause” under the APA to issue any interim final rule, or they must be
statutorily authorized to forego notice-and-comment procedures.42
Does the CRA Apply to Proposed Rules?
No, it does not appear that the CRA applies to proposed rules. Although the CRA does not
expressly provide that a rule must be final before it may be reviewed by Congress,43 a proposed
rule arguably does not satisfy the CRA definition of rule. GAO specifical y advises agencies not
to submit proposed rules to Congress or GAO under the CRA, stating on its website that
“Agencies should only submit major, non-major, and interim final rules.”44
In 2014, GAO published a legal opinion determining that the CRA does not apply to proposed
rules.45 GAO suggested that the statutory scheme indicates that the CRA applies only to final
(D.C. Cir. 2002); Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993) .
40 See Career College Ass’n v. Riley, 74 F.3d 1265 (D.C. Cir. 1996) (“T he key word in the title ‘Interim Final Rule,’
unless the title is to be read as an oxymoron, is not interim, but final. ‘Interim’ refers only to the Rule’s intended
duration—not its tentative nature.”)
41 While there are numerous examples of the use of interim final rules prior to 1995, the practice of post -promulgation
comments appears to have its genesis in a 1995 recommendation of the Administrative Conference of the United States
(ACUS), which suggested the procedure whenever the “impracticable” or “contrary to the public interest” prongs of the
“good cause” exemption were invoked. See ACUS Recommendation 95-4, Procedures for Noncontroversial and
Expedited Rulem aking, 60 Federal Register 43110, August 18, 1995. See also Michael R. Asimow, “ Interim-Final
Rules: Making Haste Slowly,” Adm inistrative Law Review vol. 51, no. 3 (Summer 1999).
42 5 U.S.C. §553(b)(B) (“Except when notice or hearing is required by statute, this subsection does not apply. when
the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules
issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”) See
also Jeffrey S. Lubbers, A Guide to Federal Agency Rulem aking, 6th ed. (2018), pp. 114-116; and CRS Report R44356,
The Good Cause Exception to Notice and Com m ent Rulem aking: Judicial Review of Agency Action , by Jared P. Cole.
In limited cases, agencies have been provided specific statutory authorization to issue interim final rules. For example,
see T itle 42 U.S.C. §300gg-92, stating, “ T he Secretary [of Health and Human Services] may promulgate any interim
final rules as the Secretary determines are appropriate to carry out this subchapter.” Such authority would allow an
agency to issue an interim final rule without citing good cause.
43 By contrast, 5 U.S.C. §704 provides that, generally, courts may review only “final agency action.”
44 GAO, “Congressional Review Act (CRA) FAQs,” https://www.gao.gov/legal/other-legal-work/congressional-
review-act. (“ [Question:] Should agencies submit proposed rules to GAO? [Answer:] No. Agencie s should only submit
major, non-major, and interim final rules to GAO.”)
45 Susan A. Poling, general counsel, GAO, letter to the Honorable Harry Reid, Mitch McConnell, Barbara Boxer, and
T homas Carper, May 29, 2014 (regarding GAO’s Role and Responsibility Under the Congressional Review Act), p. 1.
T his opinion was written in response to a request from Senator Mitch McConnell, who asked GAO to analyze whether
an EPA proposed rule satisfied the definition of rule in the CRA. Senator Mitch McConnell, letter to Gene L. Dodaro,
comptroller general of the United States, January 16, 2014. Senator McConnell specifically argued that the manner in
which the EPA issued the proposed rule gave it “immediate legal effect,” which distinguished this proposed rule from
other proposed rules, which have no immediate legal effect. In its response opinion, GAO did not specifically address
the argument that this proposed rule was different than other proposed rules, instead concluding that “ the issuance of a
proposed rule is an int erim step in the rulemaking process intended to satisfy APA’s notice requirement, and, as such, is
not a triggering event for CRA purposes.” Poling, p. 6.
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rules, noting that proposed rules are only “an interim step in the rulemaking process,”46 and cited
legislative history supporting the opinion that the CRA applies only to final rules.47Furthermore,
GAO stated that its prior decisions had found that an agency action constituted a rule for CRA
purposes if “the action imposed requirements that were both certain and final.”48 Since proposed
rules “are proposals for future agency action that are subject to change … and do not have a
binding effect on the obligations of any party,” GAO concluded they should not be considered “a
triggering event for CRA purposes.”49 Ultimately, however, GAO also noted that because the
CRA’s expedited procedure for review of agency rules was enacted pursuant to Congress’s
constitutional authority to establish its own procedural rules, it is for “Congress to decide whether
[the] CRA would apply to a resolution disapproving a proposed rule.”50
Does the CRA Apply to Executive Orders?
No, the CRA does not apply to actions of the President such as executive orders and other types
of presidential directives. The CRA imports the definition of agency from the APA, and courts
have interpreted the APA’s definition of agency not to cover the President.51 Accordingly, GAO
has interpreted the CRA also not to cover actions taken by the President.52 In some circumstances,
however, the CRA may be available to overturn agency actions taken in response to presidential
directives.
What Is a Major Rule Under the CRA?
The CRA defines major rule as
any rule that the Administrator of the Office of Information and Regulatory Affairs [OIRA]
of the Office of Management and Budget [OMB] finds has resulted in or is likely to result
in—
(A) an annual effect on the economy of $100,000,000 or more;
(B) a major increase in costs or prices for consumers, individual industries,
Federal, State, or local government agencies, or geographic regions; or
(C) significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets.
46 Poling, p. 6.
47 Poling, p. 5.
48 Poling, p. 8.
49 Poling, pp. 6, 8.
50 U.S. Const., art. I, §5, cl. 2; Poling, p. 9.
51 T he CRA applies to “rules” promulgated by a “federal agency” (5 U.S.C. §804(1)) and refers to the definition of
“agency” provided in the APA (5 U.S.C. §551(1)). T hat APA definition broadly defines an agency as “each authority
of the Government of the Unit ed States” with limited exceptions, and, accordingly, the CRA generally covers rules
issued by most executive branch entities. In the context of the APA, however, courts have held that this definition
excludes actions of the President; see Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992) (holding that the
President’s actions may not be reviewed under the APA and declining to hold that the President is an “agency” within
the APA’s definition).
52 Letter from U.S. General Accounting Office (GAO, now Gov ernment Accountability Office) to Senator Conrad
Burns on whether the American Heritage River Initiative, created by Executive Order 13061, is a “rule” under the
CRA, November 10, 1997 (GAO B-278224), p. 3 (concluding that an executive order “ need not have been submitted to
Congress” because the President is not an “agency” under the CRA).
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The term does not include any rule promulgated under the Telecommunications Act of
1996 and the amendments made by that Act.53
Rules can meet the economic threshold for classification as a major rule ($100 mil ion effect on
the economy) for a variety of reasons, including because they involve compliance costs, result in
transfers of funds, prompt consumer spending, establish user fees, or result in cost savings for
consumers and taxpayers.54
What Happens When a Rule Is Designated as Major?
When a rule is designated as major, the CRA subjects it to two additional procedural steps. The
first is that the comptroller general is required to prepare and submit to the House and Senate
committees of jurisdiction a report on each major rule within 15 calendar days of its submission
or publication date.55 This report is to contain “an assessment of the agency’s compliance with
procedural steps” required for the rule, including any cost-benefit or other analysis under certain
executive orders or statutes such as the Regulatory Flexibility Act and the Unfunded Mandates
Reform Act.56
Second, the CRA contains provisions that may delay the effective dates of major rules.57
Specifical y, if the rule is major, the statute provides that it “shal take effect on the latest of”:
60 days after the date that the rule is published in the Federal Register or
received by Congress, whichever is later;
if Congress passes a joint resolution of disapproval and the President vetoes it,
the date on which either house of Congress votes and fails to override the veto or
30 session days after the date Congress received the veto, whichever is earlier; or
the date the rule would have otherwise taken effect, if not for this provision of the
CRA.58
The APA requires most rules to have a 30-day delay in their effective dates.59 The CRA
requirement for a 60-day delay essential y extends that APA requirement by an additional 30 days
for major rules. This additional delay for major rules al ows Congress additional time to consider
whether to overturn a major rule—the type of rule that is most economical y impactful—before it
goes into effect.60
53 5 U.S.C. §804(2).
54 See CRS Report R41651, REINS Act: Number and Types of “Major Rules” in Recent Years, by Maeve P. Carey and
Curtis W. Copeland.
55 5 U.S.C. §801(a)(2)(A). T he major rule reports are posted on GAO’s website at https://www.gao.gov/legal/other-
legal-work/congressional-review-act.
56 P.L. 96-354; P.L. 104-4. For more information about cost -benefit requirements in rulemaking, see CRS Report
R41974, Cost-Benefit and Other Analysis Requirem ents in the Rulem aking Process, coordinated by Maeve P. Carey.
57 T he CRA has two exceptions to this delay. See “ Error! Reference source not found.” below.
58 5 U.S.C. §801(a)(3). For a more detailed discussion about how the CRA may alter the effective date of major rules,
see “Error! Reference source not found.” below.
59 5 U.S.C. §553(d).
60 Congress can overturn a rule under the CRA regardless of whether it has gone into effect —the CRA states that a rule
“shall not take effect (or continue [in effect]), if the Congress enacts a joint resolution of disapproval” (5 U.S.C.
§801(b)).
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For certain types of major rules, these effective date requirements may not apply. The CRA states
that, notwithstanding the provisions outlined above, the following rules wil take effect on the
date the promulgating agency chooses:
(1) any rule that establishes, modifies, opens, closes, or conducts a regulatory program for
a commercial, recreational, or subsistence activity related to hunting, fishing, or camping,
or
(2) any rule which an agency for good cause finds (and incorporates the finding and a brief
statement of reasons therefor in the rule issued) that notice and public procedure thereon
are impracticable, unnecessary, or contrary to the public interest.61
If the rule is not major, the CRA states that the rule “shal take effect as otherwise provided by
law after submission to Congress.”62
Who Determines Whether a Rule Is Major?
The administrator of OIRA is responsible for determining whether a rule is major under the
CRA.63 The CRA does not specifical y require agencies to submit their rules to OIRA so that such
a determination can be made. In April 2019, however, the Trump Administration issued guidance
directing agencies, including independent regulatory agencies, to submit their rules to OIRA for
this determination.64 Prior to 2019, executive agencies had already routinely submitted their rules
to OIRA for review pursuant to executive order,65 but OIRA had largely deferred to independent
regulatory agencies’ own major rule determinations.66
Does the CRA Apply to Non-Major Rules?
Yes. The CRA can be used to overturn any final rule, regardless of whether the rule is major.
61 5 U.S.C. §808. T he “good cause” language in the second category of rules in Section 808 refers to an exception to
the notice-and-comment rulemaking requirements of the APA. T hat exception allows agencies to publish final rules
without seeking comments from the public on an earlier proposed rule (5 U.S.C. §553(b)(B)). When agencies invoke
this good cause exception, the APA requires that they explicitly say so and provide a rationale for the exception’s use
when the rule is published in the Federal Register. A federal agency’s invocation of the APA’s good cause exception is
subject to judicial review (see CRS Report R44356, The Good Cause Exception to Notice and Com m ent Rulem aking:
Judicial Review of Agency Action, by Jared P. Cole).
62 5 U.S.C. §801(a)(4).
63 5 U.S.C. §804(2).
64 Vought, “Guidance on Compliance with the Congressional Review Act.”
65 Executive Order 12866, “Regulatory Planning and Review,” §3(b). For more on OIRA review, see CRS Report
RL32397, Federal Rulem aking: The Role of the Office of Inform ation and Regulatory Affairs, coordinated by Maeve P.
Carey.
66 See CRS Insight IN11122, OMB Issues New CRA Guidance, Potentially Changing Relationship with Independent
Agencies, by Maeve P. Carey for further discussion of this OMB guidance, and “ Increased Oversight of Independent
Regulatory Agencies” above.
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Agency Submission of Rules
When Does an Agency Have to Submit a Rule to Congress and
GAO?
The CRA does not specify when an agency must submit a rule. However, a rule cannot become
effective until after it is submitted.67 In practice, agencies general y submit rules around the time
the rule is finalized and published in the Federal Register, if such publication is required.
How Do I Check If a Rule Has Been Submitted Under the CRA?
Submissions to Congress
When final rules are submitted to Congress pursuant to the CRA, notice of each chamber’s
receipt and referral appears in the respective House and Senate sections of the daily
Congressional Record devoted to “Executive Communications.” They are also entered into a
database that can be searched using the main search page of Congress.gov at
https://www.congress.gov.68
Submissions to GAO
GAO also maintains a database on its website tracking rules it receives under the CRA. The
database can be accessed at https://www.gao.gov/legal/other-legal-work/congressional-review-
act. The GAO database also contains links to the reports GAO produces on major rules.
Among other things, the GAO database lists the date the final rule was received by GAO. The
date a rule was received by GAO is irrelevant for the calculation of the various CRA time periods
for review and action, however. Rather, the dates of receipt by the House and Senate, which often
differ from the date received by GAO, are used for calculating these time periods. See “How Do I
Introduce a Joint Resolution of Disapproval?” for a discussion of how the date of receipt by
Congress is determined for purposes of estimating the time periods governing the CRA
disapproval mechanism.
What Happens If an Agency Does Not Submit a Rule to Congress?
In some instances, an agency has considered an action not to be a rule under the CRA and has not
submitted the action to Congress, even though the action arguably met the CRA’s broad
definition of rule. Typical y, this has occurred when the agency was not required to follow the
APA’s notice-and-comment rulemaking procedures to take the action.69 If an action meets the
CRA’s definition of rule, however, regardless of whether it is subject to notice-and-comment
procedures, it should be submitted under the CRA and is subject to disapproval using the CRA’s
expedited procedures.
67 5 U.S.C. §801(a)(1)(A).
68 T he search page at Congress.gov offers a number of searches from its home page. See the categories entitled “House
Communications” and “Senate Communications” on the left side of the page.
69 See “What Is a Covered Rule Under the CRA?” above. See also CRS Report R45248, The Congressional Review
Act: Determining Which “Rules” Must Be Submitted to Congress, by Valerie C. Brannon and Maeve P. Carey.
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Because the CRA’s special procedures are not available until rules are submitted to Congress, if
an agency does not submit a rule to Congress, this could potential y frustrate Congress’s ability to
review rules under the act. Furthermore, because the CRA contains a provision barring judicial
review,70 most courts have declined to review claims chal enging an agency’s failure to submit a
rule, making it unlikely that a court would compel an agency to submit a rule under the CRA even
if it met the definition of rule.71
Consequently, Congress (and more specifical y, the Senate) has developed a practice that al ows it
to employ the CRA’s review mechanism even when an agency does not submit a covered rule.72
Specifical y, Members of Congress who thought a particular agency action should have been
submitted have asked GAO for a formal opinion on whether the specific action satisfies the CRA
definition of rule. GAO has issued several opinions of this type since the CRA’s enactment in
1996.73 In some of these opinions, GAO determined that the agency action satisfied the CRA
definition of rule; in others, GAO determined the agency action did not satisfy the CRA definition
of rule either because it fel under one of the exceptions or was outside the scope of the statute
altogether. Under current Senate practice, a GAO opinion concluding that an agency action is a
rule can essential y substitute for the agency’s submission of the rule and stil al ow Congress to
use the CRA’s fast-track procedures for disapproval.
To avail themselves of the CRA’s disapproval mechanism following such an opinion, Senators
have sometimes published the GAO opinions in the Congressional Record.74 It appears that, in
these cases, the Senate has considered the date of publication of the GAO opinion in the
Congressional Record to be the beginning of the periods for congressional review.75 Normal y,
when agencies submit their rules to Congress under the CRA, a record of each rule’s receipt is
published in the Congressional Record. The publication of the GAO opinion in the Congressional
Record fulfil s this same purpose: notifying Congress that a rule is now available for review under
the CRA.
The 115th Congress used this alternative process for the first time to initiate consideration of a
resolution of disapproval overturning an agency guidance document that had not been submitted
under the CRA.76 To date, this is the only instance when Congress disapproved a rule that was not
70 5 U.S.C. §805 (“ No determination, finding, action, or omission under this chapter shall be subject to judicial
review.”) See “ Is T here Judicial Review Under the CRA?” below.Error! Re fe re nce source not found.
71 See, for example, Wash. Alliance of T ech. Workers v. U.S. Dep’t of Homeland Sec., 892 F.3d 332, 346 (D.C. Cir.
2018). See “ Is T here Judicial Review Under the CRA?Error! Reference source not found.” for further discussion of t
his provision.
72 See CRS In Focus IF11096, The Congressional Review Act: Defining a “Rule” and Overturning a Rule an Agency
Did Not Subm it to Congress, by Maeve P. Carey and Valerie C. Brannon .
73 For a list of these opinions, see Appendix B. T he opinions are available on GAO’s website at https://www.gao.gov/
legal/other-legal-work/congressional-review-act. For a summary of each of the opinions and for a more in -depth
discussion of the types of agency actions that are covered by the CRA, see CRS Report R45248, The Congressional
Review Act: Determining Which “Rules” Must Be Submitted to Congress, by Valerie C. Brannon and Maeve P. Carey.
74 It is up to a Senator, not GAO, to submit the opinion for publication in the Congressional Record. As explained by
one Senator, “Based on Senate precedent, my understanding is that the publication of the GAO legal opinion in today’s
Record will start the ‘clock’ for congressional review under the provisions of the CRA.” Statement of Senator Ron
Wyden, Congressional Record, daily edition, vol. 165 (July 17, 2019), p. S4901. For additional examples of GAO
opinions published in the Congressional Record, see Congressional Record, daily edition, vol. 163 (October 24, 2017),
p.S6760; Congressional Record, daily edition, vol. 163 (November 27, 2017), p.S7330; and Congressional Record,
daily edition, vol. 158 (September 10, 2012), p.S6047.
75 For a discussion of these periods and their triggers, see “ How Do I Introduce a Joint Resolution of Disapproval?” and
“What Are the CRA “Fast T rack” Procedures?” below.
76 See S.J.Res. 57, which was signed into law on May 21, 2018, and became P.L. 115-172. P.L. 115-172 overturned the
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submitted. In al of the other 19 instances in which the CRA has been used to overturn agency
actions, the disapproved actions were regulations that were adopted through the APA’s
rulemaking process, published in the Federal Register, and submitted to Congress under the
CRA.77
Congressional Procedures Under the CRA
How Do I Introduce a Joint Resolution of Disapproval?
In most respects, submitting a CRA joint resolution of disapproval is the same as introducing any
other House or Senate measure. There is, however, a specific time period during which a
qualifying joint resolution can be submitted, and its text must read exactly as laid out in the law.78
The receipt of a final rule by Congress begins a period of 60 “days of continuous session” during
which any Member of either chamber may submit a joint resolution disapproving the rule under
the CRA.79 Although not required by the statute, it appears that the Senate has established the
additional requirement that the rule be published in the Federal Register (if such publication is
required) before a qualifying joint resolution of disapproval may be submitted. Accordingly, for
purposes of the act, a rule is practical y considered to have been “received by Congress” on the
later date of its receipt in the Office of the Speaker of the House, its referral to Senate committee,
or its publication in the Federal Register. In calculating “days of continuous session,” every
calendar day is counted, including weekends and holidays, and the count is paused only for
periods where either chamber (or both) is gone for more than three days—that is, pursuant to the
adoption of a concurrent resolution of adjournment.80 In order to qualify for the special
parliamentary procedures of the CRA, a joint disapproval resolution must be submitted during
this 60-day period—not before and not after.81
Under Section 802(a) of the act, the text of a CRA joint disapproval resolution is stipulated. It
states the matter after the resolving clause must read:
“That Congress disapproves the rule submitted by the ____ relating to ____, and such rule
shall have no force or effect.” (The blank spaces being appropriately filled in).
The first blank would identify the agency promulgating the final rule and the second the name of
the rule itself.
Bureau of Consumer Financial Protection, Indirect Auto Lending and Compliance with the Equal Credit Opportunity
Act, March 21, 2013, https://files.consumerfinance.gov/f/201303_cfpb_march_-Auto-Finance-Bulletin.pdf.
77 For a complete list of the disapproved rules, see Appendix A.
78 5 U.S.C. §802(a).
79 5 U.S.C. §802(a).
80 In recent sessions, Congress has not adopted adjournment resolutions during periods of extended absence, opting
instead to hold periodic pro form a sessions. Under such circumstances, a period of 60 days of continuous session is
equal to 60 calendar days.
81 5 U.S.C. §802(a). It appears that, in some cases, if the deadline for introduction expires when the Senate is in a
period of pro form a session, that chamber may permit a qualifying joint resolution to be submitted on the day the
Senate returns to regular session. Members and staff are encouraged to consult with the Senate Parliamentarian or his
or her assistants to determine the precise deadline for submitting a joint resolution aimed at any specific agency final
rule.
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Can a Joint Resolution of Disapproval Contain a Preamble?82
While the CRA procedure does not explicitly bar a joint resolution of disapproval from having a
preamble (as some other expedited procedure statutes do), it is believed that including one raises
a number of questions about House and Senate consideration of the measure and that, as such, the
practice should be avoided. In the Senate, the preamble to a joint resolution is voted on after the
passage of the resolution itself and is separately amendable. Would the consideration of a
preamble fal under the “fast track” Senate procedures banning amendments and limiting debate?
Does the inclusion of a preamble eliminate the privileged status of the measure in the view of
either chamber? Because of these and other ambiguities, Members are advised to consult with the
House and Senate Parliamentarians to obtain their definitive review of the measure’s text prior to
submission. Members may consider laying out the reasons for and intent of a disapproval
resolution in ways other than a preamble by, for example, publishing a statement in the
Congressional Record upon introduction of the measure or in floor debate.
How Is a Joint Resolution of Disapproval Different from a Bill?
The CRA requires that the disapproval measure be introduced as a joint resolution. Bil s and joint
resolutions each have traditional uses, but for purposes of the legislative process, the two types of
legislation are general y interchangeable. In order to be enacted, a bil or joint resolution has to
pass the House and Senate with identical text in both chambers and be signed by the President,
enacted over his veto, or become law without his signature.83
Can a Joint Resolution of Disapproval Be Used to Invalidate Part of a Rule or
More Than One Rule?
No. Each CRA joint resolution of disapproval can be used to invalidate only a single final rule in
its entirety.84
What Are the CRA “Fast Track” Procedures?
The CRA contains “fast track” procedures (sometimes cal ed “expedited parliamentary
procedures”) for both committee consideration and floor consideration of a CRA disapproval
resolution in the Senate.85
The CRA does not contain “fast track” procedures for committee and initial floor consideration of
a joint resolution of disapproval in the House. In every case in which the House has considered a
CRA disapproval resolution on the floor, it has done so under the terms of a closed special rule
reported by the Rules Committee and adopted by the House.86 When considered under the terms
of a special rule, the House minority leader or his designee is guaranteed the opportunity to offer
a nondebatable motion to recommit the joint resolution. The CRA also provides expedited
82 A preamble is a series of “whereas” clauses found before the resolving clause describing the reasons for and intent of
a measure.
83 Constitutional amendments are traditionally introduced as joint resolutions, but are not presented to the President
following passage by Congress.
84 See 5 U.S.C. §802(a) (requiring the text of a CRA resolution of disapproval to cite a rule in its entirety).
85 5 U.S.C. §802(c), (d).
86 When a measure is considered under the terms of a closed special rule, no floor amendments are in order.
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procedures that govern the consideration by either the House or Senate of a disapproval resolution
received from the other chamber.
What Are the CRA “Fast Track” Procedures for Senate Committee
Consideration?
Any time after the expiration of a 20-calendar-day period that begins after a final rule is received
by Congress and published in the Federal Register (if it is required to be published), a Senate
committee can be discharged from the further consideration of a CRA joint resolution
disapproving the rule.87 This discharge occurs upon the filing on the Senate floor of a petition
signed by at least 30 Senators.88 While the act does not specify the text of a CRA discharge
petition, those that have been used in the past resemble the language used to file a cloture motion
in the Senate:
We, the undersigned Senators, in accordance with chapter 8 of title 5, United States Code,
hereby direct that the Senate Committee on Commerce, Science, and Transportation be
discharged of further consideration of S.J. Res. 6, a resolution on providing for
congressional disapproval of a rule submitted by the Federal Communications Commission
relating to the matter of preserving the open Internet and broadband industry practices, and,
further, that the resolution be immediately placed upon the Leg islative Calendar under
General Orders.89
What Are the CRA “Fast Track” Procedures for Senate Floor Consideration?
Once a CRA joint resolution of disapproval is reported or the committee of jurisdiction
discharged, any Senator may make a nondebatable motion to proceed to consider the disapproval
resolution on the floor.90 This motion to proceed requires a simple majority for adoption. If the
motion to proceed is successful, the CRA disapproval resolution would then be pending and
subject to up to 10 hours of debate.91 A nondebatable motion to limit debate below 10 hours is in
order. No amendments are permitted.92 Upon the using or yielding back of the al otted time, the
Senate would vote on the measure. A CRA disapproval resolution requires a simple majority in
order to pass. Because the measure is debate-limited, cloture (and its accompanying requirement
for supermajority support) is unnecessary.
The CRA “fast track” procedures governing the each chamber’s consideration of a joint
resolution of disapproval are considered to be rules of the House and Senate, despite being
enacted in law. As such, the chambers may suspend these rules in whole or in part by unanimous
consent, suspension of the rules, or special rule.
87 5 U.S.C. §802(c). It is important to note that the 20-day period after which a discharge petition may be presented in
the Senate is calculated from the receipt and publication of the rule, not from the submission of a disapproval resolution
aimed at the rule. Accordingly, if a disapproval resolution were to be submitted later than the 20 th calendar day after
receipt and publication of the final rule, it would be ripe for immediate discharge.
88 5 U.S.C. §802(c).
89 Congressional Record, daily edition, vol. 157 (November 3, 2011), p. S7141.
90 5 U.S.C. §802(d)(1). T he motion to proceed to consider contained in the CRA, like the motion to proceed to
consider, contained in the standing rules of the Senate, can be made by any Senator. In practice, however, with rare
exception, Senators generally defer to the majority leader or his or her designee to make such scheduling motions or
consult closely with him or her on the timing of such actions.
91 5 U.S.C. §802(d)(2).
92 5 U.S.C. §802(d)(2).
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For How Long Are the “Fast Track” Procedures Available?
In order to be eligible for the “fast track” procedures for Senate consideration, that body has to act
on a properly introduced disapproval resolution during a period of 60 days of Senate session that
begins when the rule is received by Congress and published in the Federal Register (if it is
required to be published). After this “action” period has expired, the joint resolution could stil be
considered, but would have to be cal ed up and debated under normal Senate procedures. There is
no deadline specified in the CRA on House consideration. The House can presumably act on a
joint resolution of disapproval at any point during the life of the two-year Congress.
Do Disapproval Resolutions Have to Be Submitted in Both
Chambers of Congress?
No. The CRA does not technical y require that “companion” disapproval resolutions be submitted
in both the House and Senate. Under certain circumstances, however, doing so may be
procedural y or political y desirable.
Under the terms of the CRA “fast track” procedure, if one chamber receives a disapproval
resolution passed by the other chamber, the receiving chamber may take up and debate its own
disapproval resolution but, at the point of disposition, is to take the final vote on the disapproval
resolution received from the other house. This automatic “hookup” provision guarantees that both
chambers are acting on the same joint resolution, and, as such, it can be sent directly to the
President following second-chamber passage. The mechanism also ensures that there wil be no
need to resolve legislative differences between the chambers even in cases where the House and
Senate disapproval resolutions have slightly different texts.93
If the House passes a joint resolution of disapproval, for example, and messages it to the Senate,
the House measure would automatical y be placed on the Calendar of Business. The Senate could
then directly consider the House measure under the fast track procedures without first taking up
its own disapproval resolution.94 If the Senate acts first, the received joint resolution would be
held at the desk in the House. The House could take up the received Senate measure, should it
choose to do so, under its normal parliamentary mechanisms without having a companion
resolution submitted in the House.
Having disapproval resolutions submitted in both chambers, however, would preserve the option
of having either chamber act first.95 Submitting companion measures might also be desirable from
a political standpoint in that having a designated champion of the repeal in each chamber might
be viewed as increasing support for its passage and increasing the visibility of the issue.
93 While, as discussed, the CRA stipulates the text of the joint resolution after the resolving clause, it is possible that
each chamber could submit companion resolutions which have filled in the “blanks” in the stipulated text with slightly
different language.
94 5 U.S.C. §802(f).
95 It is also possible, at least theoretically, that a joint resolution disapproving an agency final rule could be viewed as a
revenue-affecting measure, necessitating that the resolution presented to the President originate in the House.
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What Happens If Congress Adjourns Before the CRA Initiation or
Action Periods Conclude?
If, within 60 days of session in the Senate or 60 legislative days in the House after the receipt by
Congress of a rule,96 Congress adjourns its annual session sine die, the periods to submit and act
on a disapproval resolution “reset” in their entirety in the next session of Congress.97 This
mechanism is sometimes referred to as the CRA “lookback” period.
In the subsequent session of Congress, the renewed periods for CRA review begin on the 15th day
of session in the Senate and the 15th legislative day in the House. If the new session is the second
session of the same Congress, a disapproval resolution submitted in the first session remains
available for expedited action in the Senate during its new action period of 60 days of session.98
The intent of the lookback mechanism is to prevent an agency from waiting until the closing days
of a congressional session to submit a rule to Congress, thus denying the House and Senate
adequate time to review the rule; the provision guarantees that Congress wil have the full periods
contemplated by the act to disapprove a rule regardless or when that rule is submitted.99
Is It Possible to Ascertain When the Periods for Submission,
Discharge, and Action on a Resolution to Disapprove a Given Rule
Begin and End?
Yes. CRS can provide congressional clients with unofficial estimates of the periods to submit,
discharge, and act on a joint resolution of disapproval under the CRA once a given rule has been
received by Congress and published in the Federal Register. It is important to stress, however,
that CRS estimates are always unofficial and nonbinding. The House and Senate Parliamentarians
are the sole definitive arbiters of the CRA parliamentary mechanism, including time periods
involved, and should be consulted for authoritative guidance on its operation.
Effect of a Resolution of Disapproval
What Is the Effect of Enacting a CRA Joint Resolution of
Disapproval?
Enactment of a CRA joint resolution disapproving a rule has two primary effects. First, a rule
subject to a disapproval resolution wil not take effect if it had not taken effect by the time the
96 A legislative day begins when the House reconvenes following an adjournment (of whatever length) and concludes
when that chamber next adjourns. A day of Senate session is any calendar day on which the Senate meets, including in
brief pro form a session,
97 5 U.S.C. §801(d)(1).
98 5 U.S.C. §801(d)(2)(A).
99 For a brief discussion of the mechanics of the “lookback” period, see CRS In Focus IF10023, The Congressional
Review Act (CRA), by Maeve P. Carey and Christopher M. Davis.
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disapproval was enacted.100 If a rule has taken effect by the time it is disapproved, it is not to
continue in effect and “shal be treated as though such rule had never taken effect.”101
Second, the CRA provides that an agency may not reissue the rule in “substantial y the same
form” or issue a “new rule that is substantial y the same” as the disapproved rule “unless the
reissued or new rule is specifical y authorized by a law enacted after the date of the joint
resolution disapproving the original rule.”102
When Is a New Rule “Substantially the Same” as a Disapproved Rule?
The CRA does not define the meaning or scope of substantially the same.103 Looking to the
ordinary meaning of the text may not provide much guidance for agencies looking to reissue
specific rules.104 The word substantially has been defined as “being largely but not wholly that
which is specified,”105 “to a great extent or degree,” or “in essentials.”106 This leaves ambiguity,
however, in how to determine whether a new rule is largely the same as a disapproved rule.
Sameness could be determined by a number of factors and would likely depend on the rule in
question.107 Under these definitions, it could be measured simply by comparing the language of
the two rules or by attempting to determine which portions of the rule were essential and
comparing the rules on that basis. For example, if the legislative history of the joint resolution of
disapproval suggests that Congress objected to a specific section of a rule that was ultimately
disapproved, would a rule that removed only that language be considered “substantial y the same”
as the original, even if the text is otherwise the same? If the agency reissued a rule in which it
changed one standard listed in the original regulation, would that be “substantial y the same”? If
it changed the number of categories to which a standard applied, would the rule stil be
100 5 U.S.C. §801(b)(1).
101 5 U.S.C. §801(f).
102 5 U.S.C. §801(b)(2). A CRA disapproval resolution has another related effect in certain circumstances: Where an
agency is under a statutory, regulatory, or court -imposed deadline to promulgate a rule, the deadline will be extended
for one year from the enactment of the joint resolution of disapproval (5 U.S.C. §803).
103 Nor is there a particular definition of substantially the same in the U.S. Code that would apply to this section. T he
Code contains over 270 provisions that include the terms substantially sim ilar or substantially the sam e. See, for
example, 15 U.S.C. §57a; 26 U.S.C. §§83, 168, 246; 49 U.S.C. §§30141, 30166. At least one other law has prohibited
an agency from issuing “substantially similar” regulations, which is also undefined in the text (Federal T rade
Commission Improvements Act of 1980 , P.L. 96-252, 94 Stat. 391-92).
104 Courts frequently look to dictionaries to determine a word’s ordinary mean ing, although dictionary definitions are
generally not conclusive. See, for example, Yates v. United States, 574 U.S. 528, 537 (2015) (“Ordinarily, a word’s
usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts,
sometimes mean different things.”).
105 Merriam Webster, “substantial,” accessed February 11, 2021, at https://www.merriam-webster.com/dictionary/
substantially.
106 Oxford English Dictionary, “substantially, adv.,” accessed February 11, 2021, at https://www.oed.com/view/Entry/
193055#eid20113890.
107 T wo scholars have argued that “if a reissued rule has a substantially different cost -benefit equation than the vetoed
rule, then it cannot be regarded as ‘substantially similar.’” Adam M. Finkel and Jason W. Sullivan, “A Cost -Benefit
Interpretation of the ‘Substantially Similar’ Hurdle in the Congressional Review Act: Can OSHA Ever Utter the E -
Word (Ergonomics) Again?” Administrative Law Review, vol. 63, no. 4 (Fall 2011), p. 710. T he authors identified a
number of other possible interpretations of substantially the sam e, including standards that ask whether external
conditions have changed, whether the agency has addressed the “specific problems Congress identified,” or whether the
agency has devised “a wholly different regulatory approach.” Ibid., pp. 734 -37. Others have suggested that the
“legislative history surrounding the disapproval of a rule under the CRA” should be given “predominant weight” in an
evaluation of whether a rule is “substantially the same.” See Sam Batkins and Adam J. White, “Should We Fear
‘Zombie’ Regulations?” Regulation, Summer 2017, pp. 16-21.
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“substantial y the same”? These questions highlight the ambiguity in the meaning of substantially
the same.
The CRA seems to contemplate that an agency may reissue a rule related to the rule that was
disapproved or within the same policy area, so long as the new rule is not substantial y similar to
the disapproved rule. In other words, it does not appear that disapproving a rule under the CRA
prevents an agency from reissuing a rule—it merely places a condition on the agency’s ability to
do so. Section 803 of the CRA stipulates that where an agency is under a statutory, regulatory, or
court-imposed deadline to promulgate a rule, the deadline wil be extended for one year from the
enactment of the joint resolution of disapproval. This provision strongly suggests that the text of
the CRA itself contemplates that at least some rules would be reissued.
Although the text alone is arguably ambiguous, the legislative history and subsequent agency
practice may shed some light on the meaning of substantially the same.108 A statement inserted
into the Congressional Record by the sponsors of the CRA following its enactment described
various factors an agency may take into consideration in deciding whether to reissue a rule,
stating that the “substantial y the same” prohibition “may have a different impact on the issuing
agencies depending on the nature of the underlying law that authorized the rule.”109 Factors the
statement identified included the amount of discretion the agency has under the authorizing law to
change the substance of the rule and whether the rule was mandatory or discretionary in the first
place. The statement also specified, “The committees intend the debate on any resolution of
disapproval to focus on the law that authorized the rule and make the congressional intent clear
regarding the agency’s options or lack thereof after enactment of a joint resolution of
disapproval.”110 In other words, the CRA’s sponsors appear to have envisioned that the debate
over a disapproval resolution would provide some guidance to the agency on next steps, helping
inform the agency’s decision about whether and how to reissue the rule—among other factors,
such as the nature of the authorizing statute. In light of this legislative history, agencies
considering reissuing rules may look to the reasons Congress gave, if any, for striking down the
rule in the first place.
As of November 2021, two rules that had previously been struck down under the CRA have been
reissued. Both overturned rules had original y been issued in 2016, in the final months of the
Barack Obama Administration, and were among the 16 rules Congress overturned in the 115th
Congress (2017-2018).111 The first rule was reissued by the Department of Labor (DOL) in
October 2019, and the second was reissued by the Securities and Exchange Commission (SEC) in
108 For example, in Pierce v. Underwood, the Supreme Court looked to a committee report to help define the statutory
phrase substantially justified, noting “ the broad range of interpretations” possible in ordinary usage and given by
dictionaries. 487 U.S. 552, 563-66 (1988). Post -enactment agency practice can also inform statutory interpretation
inquiries. See, for example, FDA v. Brown & Williamson T obacco Corp., 529 U.S. 120, 144 -46 (2000).
109 Rep. Henry Hyde, Congressional Record, daily edition, vol. 142, (April 19, 1996), p. E577. In the Congressional
Record statement, the sponsors observed that “ no formal legislative history was prepared to explain” the CRA and that
this statement was “intended to cure this deficiency.” Ibid., pp. E574-575. Courts generally disfavor the use of post -
enactment legislative history under the assumption that, by definition, it “could have had no effect on the congressional
vote.” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011) (quoting District of Columbia v. Heller, 554 U.S. 570, 605
(2008)) (internal quotation marks omitted). However, this does not preclude Congress or executive agencies from
looking to such legislative history if they believe it is persuasive.
110 Rep. Henry Hyde, Congressional Record, daily edition, vol. 142, (April 19, 1996), p. E577.
111 T he overturned rules were Securities and Exchange Commission, “Disclosure of Payments by Resource Extraction
Issuers,” 81 Federal Register 49359, July 27, 2016; and U.S. Department of Labor, “Federal-State Unemployment
Compensation Program; Middle Class T ax Relief and Job Creation Act of 2012 Provision on Establishing Appropriate
Occupations for Drug T esting of Unemployment Compensation Applicants,” 81 Federal Register 50298, August 1,
2016.
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January 2021.112 Both agencies were under a statutory mandate to regulate on the topic of the
disapproved rule and had to determine how to draft a rule that fulfil ed these separate regulatory
requirements but was not substantial y similar to the disapproved rule.
In both of the reissued rules, the agencies provided an explanation of how, in their view, the
reissued version of the rule was different enough from the original version that it did not violate
this provision of the CRA. For example, DOL stated that in its view, the final rule was not
“substantial y the same” as the disapproved rule because the new rule had a “substantial y
different scope and fundamental y different approach” and cited some floor statements from the
debate over the joint resolution of disapproval.113 In its reissued rule, the SEC also cited some of
the statements of Members during the debate over the 2017 disapproval resolution and further
explained that in its view, “the agency should exercise its reasoned judgment in shaping new
rules, evaluating a reasonable range of potential responses, including by considering the statutory
provision that compels the rulemaking, the administrative record, and the CRA’s requirements,
among other things.”114 Both agencies sought to determine the “central” issue at the heart of the
disapproved rule and concluded that they had to change that aspect of the rule rather than change
solely their original justifications or more ancil ary provisions.115
How Is the “Substantially the Same” Prohibition Enforced?
The CRA is also silent on the question of who would make the determination as to whether a new
rule is “substantial y the same” as a disapproved rule. Congress and agencies themselves might be
ultimately responsible for making that determination rather than a court. As discussed more in the
following section, the CRA contains a prohibition on judicial review, stating that “no
determination, finding, action, or omission under this chapter shal be subject to judicial
review.”116 Courts have general y—but not universal y—interpreted this provision to mean that
they may not consider any claims al eging that an agency has failed to comply with the CRA.117
As yet, no court has ruled on the precise question of whether an agency’s compliance with the
“substantial y the same” prohibition could be subject to judicial review.118 If a court believed that
112 See CRS Insight IN10996, Reissued Labor Department Rule Tests Congressional Review Act Ban on Promulgating
“Substantially the Same” Rules, by Maeve P. Carey. T he two reissued rules were DOL, “Federal-State Unemployment
Compensation Program; Establishing Appropriate Occupations for Drug T esting of Unemployment Compensation
Applicants Under the Middle Class T ax Relief and Job Creation Act of 2012,” 84 Federal Register 53037, October 4,
2019; and SEC, “Disclosure of Payments by Resource Extraction Issuers,” 86 Federal Register 4662, January 15, 2021.
113 DOL, “Federal-State Unemployment Compensation Program,” p. 53038.
114 SEC, “Disclosure of Payments by Resource Extraction Issuers,” p. 4664.
115 DOL, “Federal-State Unemployment Compensation Program,” p. 53038; SEC, “Disclosure of Payments by
Resource Extraction Issuers,” p. 4665.
116 5 U.S.C. §805. See “ Is T here Judicial Review Under the CRA?” below.
117 See, for example, T ugaw Ranches, LLC v. U.S. Dep’t of Interior, 362 F. Supp. 3d 879, 884, (D. Idaho 2019) (noting
that “numerous” courts have “found that under a plain reading interpretation § 805 precludes judicial review,” but
holding that “§ 805 does not clearly prohibit judicial review of agency action under the CRA”).
118 Some scholars have argued that the question of whether a rule is “substantially the same” is diff erent from other
types of questions arising under the CRA because a court would be analyzing the validity of the subsequent rule rather
than Congress’s actions reviewing the prior rule. Finkel and Sullivan, “A Cost -Benefit Interpretation,” p. 732, footnote
122. See also, for example, Michael J. Cole, “ Interpreting the Congressional Review Act: Why the Courts Should
Assert Judicial Review, Narrowly Construe ‘Substantially the Same,’ and Decline to Defer to Agencies Under
Chevron,” Administrative Law Review, vol. 70, no. 1 (Winter 2018), pp. 53-108. T he post-enactment legislative history
may suggest that Congress did not believe that this provision would prohibit courts “from determining whether a rule is
in effect.” Rep. Henry Hyde, Congressional Record, daily edition, vol. 142 (April 19, 1996), p. E577. Some courts
have read this statement to support the conclusion that subsequent agency action would be judicially reviewable. See,
for example, T ugaw Ranches, LLC v. U.S. Dep’t of Interior, 362 F. Supp. 3d 879, 883 (D. Idaho 2019 ).
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the CRA barred judicial review of the question of whether a rule is “substantial y the same,” it
would likely not reach a decision on the issue of whether to invalidate a reissued rule on the basis
that it violates this “substantial y the same” prohibition.
If courts continue to bar al judicial chal enges under the CRA, Congress itself would arguably be
the arbiter of whether a reissued rule clears the “substantial y the same” standard. As occurred in
the DOL and SEC reissued rules, if an agency decides to reissue a rule, the agency would likely
explain the changes it made in light of this CRA provision, providing a justification for why in its
view the rule is sufficiently different from the version that was overturned. Such an explanation is
not required under the CRA, but it may be in the agency’s interest to provide one. The agency
does not face any other additional requirements under the CRA for a reissued rule—the new rule
would be subject to the regular procedural requirements of the federal rulemaking process,
including submission to Congress under the CRA—but in reissuing a rule, the fact that the
original rule was disapproved under the CRA does not trigger any additional requirements. When
the reissued rule is received in Congress, Congress could then disapprove the rule on the basis of
it being too similar to the disapproved version (or for other reasons). Thus, the most likely
enforcement mechanism for the “substantial y the same” question is Congress’s ability to use the
CRA again on the reissued rule. As a practical matter, one might argue that this leaves an agency
in a fairly strong position to reissue a disapproved rule, given that the CRA is at its most effective
during the relatively narrow window following a presidential transition.
What Is the Effect of a CRA Joint Resolution Disapproving an
Amendment to a Previously Issued Rule?
Agencies often promulgate rules that substantively amend or make technical corrections to
previously issued rules. An amendment to a rule is considered to be a “rule” under the APA and
the CRA.119 If a CRA joint resolution of disapproval were enacted regarding such an amendment,
it would prevent the amendment from going into effect or continuing in effect. However, the joint
resolution of disapproval would have no effect on the previously existing rule that was being
amended.
What Is the Effect of a CRA Joint Resolution Disapproving a Rule
that Repeals a Previous Rule?
General y, the effect of using the CRA to overturn a rule that repealed a prior rule would be
essential y to undo the repeal—in other words, overturning the rule under the CRA may have the
effect of reinstating the prior rule.120 However, the specifics may depend on the particular
phrasing of the relevant rules and any intervening developments.
119 T he APA defines rulemaking as the “agency process for formulating, amending, or repealing a rule” (5 U.S.C.
§551(5)).
120 T his question was raised, for example, following the 2017 disapproval of the Federal Communications
Commission’s ISP Privacy Order (Federal Communications Commission, “Protecting the Privacy of Customers of
Broadband and Other T elecommunications Services,” 81 Federal Register 87274, December 2, 2016). As stated by one
district court, “An expression of congressional disapproval under the CRA simply makes it ‘as though such rule had
never taken effect,’ 5 U.S.C. § 801, returning to the status quo ante. Here, the Joint Resolution ‘disapproved’ of the
FCC’s ISP Privacy Order, bringing back into force rules the ISP Privacy Order had itself repealed.” (ACA Connects—
America’s Communs. Ass’n v. Frey, 471 F. Supp. 3d 318, 324 (D. Me. 2020)).
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What Happens If a Rule That Is Already Effective Is Overturned?
If a rule had already taken effect before it was disapproved, the CRA provides that the rule shal
not continue in effect121 and “shal be treated as though such rule had never taken effect.”122 This
provision appears to have the effect of retroactively negating actions that were taken under the
rule while it was in effect.
Is There Judicial Review Under the CRA?123
Section 805 of the CRA states: “No determination, finding, action, or omission under this chapter
shal be subject to judicial review.”124 Accordingly, courts wil not weigh in on matters fal ing
within the scope of Section 805, but wil instead leave the resolution of these CRA-related issues
to the political branches. However, there has been some judicial disagreement regarding which
CRA-related matters are within Section 805’s scope. On its face, this provision appears to bar
judicial review of a broad swathe of claims. While most reviewing courts have interpreted
Section 805 to broadly prohibit judicial review of claims al eging CRA violations, a few courts
have taken the view that certain types of CRA-related claims are not barred, as discussed in more
detail below. In particular, some courts have concluded that Section 805 al ows review of
agencies’ compliance with the CRA.125
First, one appel ate court drew a distinction between statutory and constitutional claims,
concluding that Section 805 barred it from reviewing a claim premised on compliance with the
CRA, but did not prevent it from considering a constitutional chal enge to a joint resolution of
disapproval enacted under the CRA.126 As a general rule, statutes that would deny courts the
ability to review constitutional claims raise constitutional concerns, and accordingly, courts wil
interpret laws barring judicial review to al ow constitutional chal enges “unless Congress
explicitly directs otherwise.”127 Citing this general interpretive principle, the appel ate court noted
that Section 805 does not expressly foreclose review of constitutional claims.128 Accordingly, the
court ruled that Section 805 did not bar its review of the plaintiff’s constitutional chal enge—
although the court ultimately rejected the claim on its merits.129
121 5 U.S.C. §801(b)(1).
122 5 U.S.C. §801(f).
123 T his section was authored by Valerie C. Brannon, Legislative Attorney.
124 5 U.S.C. §805. “T his chapter” refers to the CRA. See 5 U.S.C. §§801 et seq.
125 T ugaw Ranches, LLC v. U.S. Dep’t of Interior, 362 F. Supp. 3d 879, 889 (D. Idaho 2019); United States v. S. Ind.
Gas & Elec. Co., No. IP99-1692-C-M/S, 2002 U.S. Dist. LEXIS 20936, at *18 (S.D. Ind. Oct. 24, 2002).
126 Ctr. for Biological Diversity v. Bernhardt, 946 F.3d 553, 561 (9 th Cir. 2019). Cf. id. at 563 (“[W]e join our sister
circuits which have … held that federal courts do not have jurisdiction over statutory claims that arise under the
CRA.”).
127 Elgin v. Dep’t of the T reasury, 567 U.S. 1, 9 (2012).
128 Ctr. for Biological Diversity, 946 F.3d at 561.
129 Id. at 561–62. Specifically, the plaintiffs argued that the joint resolution of disapproval failed to comply with the
constitutional requirements of bicameralism and presentment, and that the allegedly improperly enacted joint resolution
interfered with the executive branch’s constitutional duty under the T ake Care Clause to ensure that laws are faithfully
executed. Id. at 561. T he court rejected both of these arguments, noting first that the joint resolution had been passed by
both houses of Congress and signed by the President. Id. at 562. Second, the court held that this validly enacted
resolution changed substantive law, amending the agency’s authority so that the executive branch subsequently had the
duty to execute the joint disapproval resolution. Id.
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But most lawsuits involving the CRA are premised on noncompliance with the statute, rather than
constitutional issues. Most courts that have considered the issue, including multiple federal
appel ate courts, have held that the CRA prohibits courts from reviewing congressional and
agency actions for compliance with the CRA.130 For example, courts have dismissed lawsuits
al eging that rules are invalid because agencies failed to submit them as required under the
CRA.131 These courts have primarily relied on the plain text of Section 805, noting the broad
sweep of the language and lack of any qualifications.132 For example, the U.S. Court of Appeals
for the D.C. Circuit in 2009 described the language of Section 805 as “unequivocal,” holding that
it “denies courts the power to void rules on the basis of agency noncompliance with the Act.”133
But a few federal trial courts have held that, while Section 805 may bar adjudication of
congressional actions taken pursuant to the CRA, it does not bar courts from reviewing agency
actions.134 First, a federal trial court in Indiana ruled in 2002 that “Congress only intended to
preclude judicial review of Congress’ own determinations, findings, actions, or omissions made
under the CRA after a rule has been submitted to it for review.”135 The court noted that a prior
district court had ruled otherwise, emphasizing that Section 805 “provides for no judicial review
of any ‘determination, finding, action, or omission under this chapter,’ not ‘by Congress under
this chapter.’”136 The Indiana court disagreed, ruling that prohibiting judicial review of agency
action “would be at odds with the purpose of the CRA, which was to provide a check on
130 See, for example, Montanans for Multiple Use v. Barbouletos, 568 F.3d 225, 229 (D.C. Cir. 2009); Via Christi Reg’l
Med. Ctr. v. Leavitt, 509 F.3d 1259, 1271 n.11 (10 th Cir. 2007). Cf. Ctr. for Biological Diversity, 946 F.3d at 563
(dismissing a challenge to an agency rescission based on a joint resolution of disapproval—a congressional action—but
stating more broadly that “federal courts do not have jurisdiction over statutory claims that arise under the CRA”).
131 See, for example, Montanans for Multiple Use, 568 F.3d at 229; Forsyth Mem’l Hosp., Inc. v. Sebelius, 667 F.
Supp. 2d 143, 150 (D.D.C. 2009). See also, for example, Wash. All. of T ech. Workers v. U.S. Dep’t of Homeland Sec.,
892 F.3d 332, 346 (D.C. Cir. 2018) (dismissing claim alleging that agency improperly published a rule prior to the
passage of the CRA’s “mandatory 60-day delay” for major rules).
132 See, for example, Kan. Nat. Res. Coal. v. U.S. Dep’t of Interior, 971 F.3d 1222, 1235 (10 th Cir. 2020); United States
v. Carlson, Crim. No. 12-305, 2013 U.S. Dist. LEXIS 130893, at *43 (D. Minn. July 25, 2013); United States v. Am.
Elec. Power Serv. Corp., 218 F. Supp. 2d 931, 949 (S.D. Ohio 2002); T ex. Sav. & Cmty. Bankers Assoc. v. Fed. Hous.
Fin. Bd., No. A 97 CA 421 SS, 1998 U.S. Dist. LEXIS 13470, *27 (W.D. T ex. 1998).
133 Montanans for Multiple Use, 568 F.3d at 229. See also, for example, Kan. Nat. Res. Coal., 971 F.3d at 1235–36
(“T he CRA contemplates determinations, findings, actions, and omissions by agencies, the Comptroller General, th e
President, and Congress…. T here is nothing in the text of the CRA to suggest that § 805 applies only to a subset of
these determinations, findings, actions, and omissions, depending on the actor who performs them.”)
134 T ugaw Ranches, LLC v. U.S. Dep’t of Interior, 362 F. Supp. 3d 879, 889 (D. Idaho 2019); United States v. S. Ind.
Gas & Elec. Co., No. IP99-1692-C-M/S, 2002 U.S. Dist. LEXIS 20936, at *18 (S.D. Ind. Oct. 24, 2002). Cf. Ctr. for
Biological Diversity v. Zinke, 313 F. Supp. 3d 976, 991 and n.89 (D. Alaska 2018) (holding that Section 805 did not
bar review of a private organization’s claim that agency acted ultra vires, or in excess of the authority granted by the
CRA, but ultimately dismissing the claim on its merits), aff’d Ctr. for Biological Diversity v. Bernhardt, 946 F.3d 553,
563 (9th Cir. 2019) (holding that Section 805 barred review of this statutory claim because it “ challenge[d] Congress’s
enactment of … a joint resolution of disapproval,” which the court said was “an action under the CRA”). In two other
cases, federal appellate courts enforced the CRA’s 60-day delay for major rules without considering the effect of T itle
5, Section 805, of the U.S. Code. NRDC v. Abraham, 355 F.3d 179, 201 –02 (2d Cir. 2004); Liesegang v. Sec’y of
Veterans Affairs, 312 F.3d 1368, 1376 (Fed. Cir. 2002). In addition, one trial court concluded that a criminal defendant
could challenge an agency’s failure to submit an alleged “rule” to Congress because a separate statute—T itle 21,
Section 811(h) of the U.S. Code—allowed for judicial review. United States v. Reece, 956 F. Supp. 2d 736, 743 –44
(W.D. La. 2013).
135 S. Ind. Gas & Elec. Co., 2002 U.S. Dist. LEXIS 20936, at *13.
136 Id. at *12 (emphasis added) (quoting T ex. Sav. & Cmty. Bankers Assoc. v. Fed. Hous. Fin. Bd., No. A 97 CA 421
SS, 1998 U.S. Dist. LEXIS 13470, *27 n.15 (W.D. T ex. 1998), aff’d, 201 F.3d 551 (5th Cir. 2000)).
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administrative agencies’ power.”137 The court also concluded that the text of the statute supported
its opinion, noting that Section 805 bars review of a “determination, finding, action, or
omission.”138 In the court’s view, “agencies do not make findings and determinations under this
chapter; Congress, on the other hand,” does.139 Consequently, the court reviewed the plaintiff’s
claim that the EPA had violated the CRA by failing to submit a rule—but ultimately rejected the
suit on its merits, holding that the EPA was not required to report the action.140
In 2019, an Idaho district court agreed with the Indiana court’s conclusion while noting that most
other courts had since rejected that view.141 The Idaho court pointed to a post-enactment
statement from the CRA’s sponsors entered into the Congressional Record.142 The sponsors’
statement said that major rule determinations made by OIRA and OMB would not be reviewable
and that courts could not review Congress’s compliance with the congressional review
procedures.143 However, the sponsors also believed that Section 805 “does not bar a court from
giving effect to a resolution of disapproval that was enacted into law ” and, accordingly, stated that
this provision “in no way prohibits a court from determining whether a rule is in effect.”144 In the
court’s view, this legislative history demonstrated that Congress “understood that actions taken by
certain actors would not be reviewable, but that this non-reviewability did not extend to al CRA
actors and that specifical y agency action would be reviewable.”145 In addition, the Idaho court
emphasized “general policy concerns,” concluding that “[r]eading judicial review out of the
CRA” and barring judicial enforcement “foils its primary purpose”—to enhance agency
accountability.146 Consequently, the court held that it had jurisdiction to hear the plaintiff’s suit,
which al eged that executive branch agencies had violated the CRA by failing to submit al eged
rules for review.147
The scope of the CRA’s bar on judicial review likely wil be subject to further litigation, and the
current majority view interpreting this prohibition broadly could shift. And as mentioned
above,148 there is very little case law interpreting, and thus uncertainty regarding, Section 805’s
137 Id. at *14.
138 Id. (quoting 5 U.S.C. §805) (internal quotation marks omitted).
139 Id.
140 Id. at *29–30.
141 T ugaw Ranches, LLC v. U.S. Dep’t of Interior, 362 F. Supp. 3d 879, 884 –86 (D. Idaho 2019). However, the court
questioned whether this majority view was as predominant as it seemed, noting that (at the time) only two U.S. Circuit
Courts of Appeals had weighed in on the question and saying that “ some of the [courts’] references to § 805 were
simply in footnotes without any analysis or explanation.” Id. at 885–86. Subsequently, the U.S. Court of Appeals for
the Ninth Circuit (Ninth Circuit), the appellate circuit with jurisdiction over Idaho, also held “ that federal courts do not
have jurisdiction over statutory claims that arise under the CRA,” Ctr. for Biological Diversity v. Bernhardt, 946 F.3d
553, 563 (9th Cir. 2019). T he broad language of that decision may suggest the Ninth Circuit believed the CRA barred
challenges to agency actions and thus could implicitly contradict the Idaho court’s decision in Tugaw Ranches, LLC,
although the specific ruling in the Ninth Circuit case involved a congressional action under the CRA.
142 Tugaw Ranches, LLC, 362 F. Supp. 3d at 887.
143 Id. (quoting Senators Don Nickles, Harry Reid, and T ed Stevens, Congressional Record, daily edition, vol. 142,
[April 18, 1996], p. S3686) (internal quotation marks omitted).
144 Id. (quoting Senators Don Nickles, Harry Reid, and T ed Stevens, Congressional Record, daily edition, vol. 142,
[April 18, 1996], p. S3686) (internal quotation marks omitted).
145 Id. at 888.
146 Id. at 888–89.
147 Id. at 889.
148 See “When Is a New Rule “Substantially the Same” as a Disapproved Rule?” above.
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applicability to agency actions subsequent to a disapproval resolution.149 In the absence of case
law on the subject, some scholars have argued that Section 805 should not bar courts from
reviewing whether a reissued agency rule is substantial y similar to a disapproved rule.150
What Other Tools Are Available to Congress for
Conducting Oversight of Federal Regulations?
Although the CRA offers a number of advantages, most of which are procedural, Congress also
has many other tools available to overturn and conduct oversight of federal agency rulemaking.151
These tools include Congress’s general legislative power; appropriations language; oversight
hearings on proposed or finalized rules; meetings with agency officials or OMB during the
rulemaking process; and public communications with agency officials, such as a letter. Each of
these is briefly discussed below.
Congress can use its legislative power to oversee the issuance and implementation of rules or to
require that an agency repeal a rule. Every rule issued by a federal agency must be based upon a
grant of authority given to that agency by Congress in statute,152 and it is Congress’s prerogative
to ensure that agencies issue rules in a manner consistent with congressional intent. Congress can
make a change to the underlying statute authorizing a rule or enact legislation that simply
overrides the rule. Such a change could remove or change the agency’s authority to issue the rule,
or it could prescribe more specifical y in law what the rule should contain. The advantage of
using the CRA is that the fast-track procedures it provides for, particularly in the Senate, can
make it easier to pass a joint resolution of disapproval than to pass a regular bil . However, as
discussed, Members must submit and act on a CRA resolution of disapproval within a particular
time period following issuance of a rule, whereas Congress can use its general legislative power
to act on a rule at any time.
Another use of Congress’s legislative power over regulations involves its power of the purse:
Congress has frequently used appropriations legislation to restrict an agency’s use of funds to
promulgate or implement particular regulations.153 However, unlike CRA joint resolutions of
149 Center for Biological Diversity v. Bernhardt involved a challenge to a joint resolution of disapproval passed under
the CRA, but did not involve a subsequent agency rule or the substantially similar provision of the CRA. See 946 F.3d
at 556. However, those judges that have concluded that Section 805 should be construed narrowly and should not bar
review of agency action have noted, as part of this analysis, that Section 805 should not be construed to bar review of
claims challenging subsequent agency rules as substantially similar. See T ugaw Ranches, LLC v. U.S. Dep’t of
Interior, 362 F. Supp. 3d 879, 883 (D. Idaho 2019); see also Kan. Nat. Res. Coal. v. U.S. Dep’t of Interior, 971 F.3d
1222, 1250–51 (10th Cir. 2020) (Lucero, J., dissenting).
150 See, for example, Cole, “Interpreting the Congressional Review Act,” p. 68 (arguing that Section 805 bars review
only of congressional actions, not “findings or determinations made by an agency that a reissued rule is not
substantially the same as the prior version of the rule”); Finkel and Sullivan, “A Cost -Benefit Interpretation,” p. 732 fn.
122 (arguing that Congress intended to bar review of congressional procedures, but not whether rules are in effect).
151 For a more detailed discussion of oversight tools that are available to Congress, see CRS Report RL30240,
Congressional Oversight Manual. See also CRS Report R45442, Congress’s Authority to Influence and Control
Executive Branch Agencies, by T odd Garvey and Daniel J. Sheffner.
152 See, for example, Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) ( “It is axiomatic that an
administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by
Congress.”).
153 For example, Congress used appropriations legislation to delay the issuance of the ergonomics rule that was later
overturned using the CRA. Such provisions were put into place after the Occupational Safety and Health
Administration issued the proposed rule in 1995 and expired on September 30, 1998. See, for example, P.L. 104-134,
which contained the following provision: “None of the funds made available in this Act may be used by the
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disapproval, provisions of this type do not nullify an existing regulation, nor do they remove the
agency’s underlying statutory authority to issue a regulation. Therefore, any final rule that has
taken effect wil continue to be binding law—even if an appropriations restriction prohibits the
agency from using funds to enforce the rule. In addition, restrictions on the use of funds in
appropriations acts, unless otherwise specified, are binding only for the period of time covered by
the measure (i.e., a fiscal year or a portion of a fiscal year). In these instances, any restriction that
is not repeated in the next relevant appropriations act or enacted as part of another measure no
longer binds the relevant agency or agencies.154
Members of Congress also may choose to use other, non-legislative tools to exert political
pressure on agencies, such as by holding a hearing on a proposed rule or a rule that has been
finalized. Congressional committees can hold oversight hearings focusing on the development or
implementation of a particular rule or set of rules that fal under their jurisdiction. Oversight
hearings can give Members a chance to directly ask agency officials questions about rules, extract
commitments from agency officials, and communicate their views.
Members of Congress can also request a meeting with the rulemaking agency while a rule is
under development to communicate his or her views to the agency, or they can make their views
publicly known by writing a letter to an agency head or other agency officials about a rule. In
addition, a Member can request to meet with OIRA, the entity within OMB that reviews most
agency regulations prior to their publication. Such meetings are sometimes referred to as “12866
meetings,” a reference to Executive Order 12866, which governs OIRA review of agency
rulemaking.155 During the OIRA review process, OIRA can play a significant role in the content
of a proposed or final rule.156 Therefore, Members may want to make their views known to OIRA
while the rule is under review.157
Occupational Safety and Health Administration to promulgate or issue any proposed or final standard regarding
ergonomic protection before September 30, 1998.” See also Julie A. Parks, “ Comment: Lessons in Politics: Initial Use
of the Congressional Review Act,” Adm inistrative Law Review, vol. 55 (2003), pp. 192-94.
154 Rules in each chamber restrict the use of provisions in appropriations bills that include language causing them to be
effective for more than one fiscal year or permanently (e.g., the use of the term hereafter or other words of futurity).
For additional information on the use of appropriations language to control agency actions, see CRS Report R41634,
Lim itations in Appropriations Measures: An Overview of Procedural Issues, by James V. Saturno.
155 Executive Order 12866, “Regulatory Planning and Review.”
156 For more information about the role of OIRA review in the rulemaking process, see CRS Report RL32397, Federal
Rulem aking: The Role of the Office of Inform ation and Regulatory Affairs, coordinated by Maeve P. Carey.
157 Members and staff (and the public) can submit a request for a 12866 meeting on OIRA’s website at
https://www.reginfo.gov/public/do/eom12866Search.
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Appendix A. Rules Overturned Using the
Congressional Review Act
Through November 12, 2021
Date Rule Was
Department
Published
Public Law
and/or Agency
Federal Register
Number
Issuing Rule
Cong.
Title of Rule
Citation
Date Enacted
Department of
107th
Ergonomics Program
November 14, 2000 P.L. 107-5
Labor, Occupational
(2001-
65 F.R. 68261
Safety and Health
2002)
March 20, 2001
Administration
Securities and
115th
Disclosure of Payments by
July 27, 2016
P.L. 115-4
Exchange
(2017-
Resource Extraction Issuers
81 F.R. 49359
February 14, 2017
Commission
2018)
Department of the
115th
Stream Protection Rule
December 20, 2016 P.L. 115-5
Interior, Office of
(2017-
81 F.R. 93066
February 16, 2017
Surface Mining
2018)
Reclamation and
Enforcement
Social Security
115th
Implementation of the NICS
December 19, 2016 P.L. 115-8
Administration
(2017-
Improvement Amendments Act
81 F.R. 91702
February 28, 2017
2018)
of 2007
Department of
115th
Federal Acquisition Regulation;
August 25, 2016
P.L. 115-11
Defense; General
(2017-
Fair Pay and Safe Workplaces
81 F.R. 58562
March 27, 2017
Services
2018)
Administration; and
National Aeronautics
and Space
Administration
Department of the
115th
Resource Management Planning
December 12, 2016 P.L. 115-12
Interior, Bureau of
(2017-
81 F.R. 89580
March 27, 2017
Land Management
2018)
Department of
115th
Elementary and Secondary
November 29, 2016 P.L. 115-13
Education, Office of
(2017-
Education Act of 1965, as
81 F.R. 86076
March 27, 2017
Elementary and
2018)
Amended by the Every Student
Secondary Education
Succeeds Act-Accountability and
State Plans
Department of
115th
Teacher Preparation Issues
October 31, 2016
P.L. 115-14
Education, Office of
(2017-
81 F.R. 75494
March 27, 2017
Postsecondary
2018)
Education
Department of
115th
Federal-State Unemployment
August 1, 2016
P.L. 115-17
Labor, Employment
(2017-
Compensation Program; Middle
81 F.R. 50298
March 31, 2017
and Training
2018)
Class Tax Relief and Job Creation
Administration
Act of 2012 Provision on
Establishing Appropriate
Occupations for Drug Testing of
Unemployment Compensation
Applicants
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The Congressional Review Act (CRA): Frequently Asked Questions
Date Rule Was
Public Law
Department
Published
and/or Agency
Federal Register
Number
Issuing Rule
Cong.
Title of Rule
Citation
Date Enacted
Department of the
115th
Non-Subsistence Take of
August 5, 2016
P.L. 115-20
Interior, Fish and
(2017-
Wildlife, and Public Participation
81 F.R. 52247
April 3, 2017
Wildlife Service
2018)
and Closure Procedures, on
National Wildlife Refuges in
Alaska
Department of
115th
Clarification of Employer’s
December 19, 2016 P.L. 115-21
Labor, Occupational
(2017-
Continuing Obligation to Make
81 F.R. 91792
April 3, 2017
Safety and Health
2018)
and Maintain an Accurate Record
Administration
of Each Recordable Injury and
Il ness
Federal
115th
Protecting the Privacy of
December 2, 2016
P.L. 115-22
Communications
(2017-
Customers of Broadband and
81 F.R. 87274
April 3, 2017
Commission
2018)
Other Telecommunications
Services
Department of
115th
Compliance with Title X
December 19, 2016 P.L. 115-23
Health and Human
(2017-
Requirements by Project
81 F.R. 91852
April 13, 2017
Services, Office of
2018)
Recipients in Selecting
Population Affairs,
Subrecipients
Office of the
Secretary
Department of
115th
Savings Arrangements Established
December 20, 2016 P.L. 115-24
Labor, Employee
(2017-
by Qualified State Political
81 F.R. 92639
April 13, 2017
Benefits Security
2018)
Subdivisions for Non-
Administration
Governmental Employees
Department of
115th
Savings Arrangements Established
August 30, 2016
P.L. 115-35
Labor, Employee
(2017-
by States for Non-Governmental
81 F.R. 59464
May 17, 2017
Benefits Security
2018)
Employees
Administration
Bureau of Consumer
115th
Arbitration Agreements
July 19, 2017
P.L. 115-74
Financial Protection
(2017-
82 F.R. 33210
November 1, 2017
2018)
Bureau of Consumer
115th
Indirect Auto Lending and
March 21, 2013
P.L. 115-172
Financial Protection
(2017-
Compliance with the Equal
N/A
May 21, 2018
2018)
Credit Opportunity Act (CFPB
Bul etin 2013-02)
Equal Employment
117th
Update of Commission’s
January 14, 2021
P.L. 117-22
Opportunity
(2021-
Conciliation Procedures
86 F.R. 2974
June 30, 2021
Commission
2022)
Environmental
117th
Oil and Natural Gas Sector:
September 14, 2020 P.L. 117-23
Protection Agency
(2021-
Emission Standards for New,
85 F.R. 57018
June 30, 2021
2022)
Reconstructed, and Modified
Sources Review
Department of the
117th
National Banks and Federal
October 30, 2020
P.L. 117-24
Treasury, Office of
(2021-
Savings Associations as Lenders
85 F.R. 68742
June 30, 2021
the Comptrol er of
2022)
the Currency
Source: Congressional Research Service, using information from the Federal Register and
http://www.congress.gov.
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The Congressional Review Act (CRA): Frequently Asked Questions
Appendix B. Government Accountability Office
(GAO) Opinions on Whether Certain Agency
Actions Are “Rules” Under the CRA
Table Lists GAO Opinions on Actions not Submitted to Congress, 1996—November 12, 2021
GAO
GAO
Agency Action
Citation
Date
Requested By
Determination
Department of Agriculture
B-274505
September
Senator Larry
Agency action is a rule
memorandum concerning the
16, 1996
Craig
under the CRA.
Emergency Salvage Timber Sale
Program
U.S. Forest Service Tongass
B-275178
July 3, 1997
Senator Ted
Agency action is a rule
National Forest Land and
Stevens
under the CRA.
Resource Management Plan
Senator Frank
Murkowski
Representative
Don Young
American Heritage River Initiative,
B-278224
November
Senator Conrad
Action is not a rule
created by Executive Order 13061
10, 1997
Burns
under the CRA
because the President
is not an agency under
the CRA.
Environmental Protection Agency
B-281575
January 20,
Representative
Agency action is a rule
“Interim Guidance for
1999
David McIntosh
under the CRA.
Investigating Title VI
Administrative Complaints
Chal enging Permits”
Farm Credit Administration
B-286338
October 17, Representative
Agency action is a rule
national charter initiative
2000
James Leach
under the CRA.
Department of the Interior
B-287557
May 14,
Representative
Agency action is a rule
Record of Decision “Trinity River
2001
Doug Ose
under the CRA.
Mainstem Fishery Restoration”
Department of Veterans Affairs
B-291906
February 28, Representative
Agency action is not a
(VA) memorandum regarding the
2003
Ted Strickland
rule under the CRA
VA’s marketing activities to enrol
because it fal s under
new veterans in the VA health
the exception in 5
care system
U.S.C. §804(3)(C).
Department of Veterans Affairs
B-292045
May 19,
Representative
Agency action is not a
memorandum terminating Vendee
2003
Lane Evans
rule under the CRA
Loan Program
because it fal s under
the exception in 5
U.S.C. §804(3)(B) or
(C).
Centers for Medicare and
B-316048
April 17,
Senator John D.
Agency action is a rule
Medicaid Services Letter on the
2008
Rockefel er, IV
under the CRA.
State Children’s Health Insurance
Senator Olympia
Program
Snowe
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GAO
GAO
Agency Action
Citation
Date
Requested By
Determination
Department of Health and Human
B-323772
September
Senator Orrin
Agency action is a rule
Services Information
4, 2012
Hatch
under the CRA.
Memorandum concerning the
Representative
Temporary Assistance to Needy
Dave Camp
Families Program
Environmental Protection Agency
B-325553
May 29,
Senator Mitch
Agency action is not a
proposed rule on Standards of
2014
McConnel
rule because “the
Performance for Greenhouse Gas
precedent provided in
Emissions from New Stationary
our prior opinions
Sources: Electric Utility
underscores that
Generating Units
proposed rules are not
rules for CRA
purposes, and GAO
has no role with
respect to them.”
Office of the Comptrol er of the
B-329272
October 19, Senator Pat
Agency action is a rule
Currency, Federal Reserve Board,
2017
Toomey
under the CRA.
and Federal Deposit Insurance
Corporation Interagency
Guidance on Leveraged Lending
U.S. Forest Service 2016
B-238859
October 23, Senator Lisa
Agency action is a rule
Amendment to the Tongass Land
2017
Murkowski
under the CRA.
and Resource Management Plan
Bureau of Land Management
B-329065
November
Senator Lisa
Agency action is a rule
Eastern Interior Resource
15, 2017
Murkowski
under the CRA.
Management Plan
Consumer Financial Protection
B-329129
December
Senator Pat
Agency action is a rule
Bureau bul etin on Indirect Auto
5, 2017
Toomey
under the CRA.
Lending and Compliance with the
Equal Credit Opportunity Act
U.S. Agency for International
B-329206
May 1, 2018 Senator Jeanne
Agency actions are not
Development fact sheet on global
Shaheen
rules under the CRA
health assistance and revisions to
Senator Benjamin
because “federal
standard provisions for U.S.
Cardin
courts have held that
nongovernmental organizations
agencies’
Senator Richard
implementation of
Blumenthal
presidential policy-
Senator Patty
making does not
Murray
constitute a rule.”
Representative
Nita M. Lowey
Representative
Diana DeGette
Representative
Eliot L. Engel
Representative
Barbara Lee
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The Congressional Review Act (CRA): Frequently Asked Questions
GAO
GAO
Agency Action
Citation
Date
Requested By
Determination
Internal Revenue Service
B-329916
May 17,
Representative
Agency action is not a
statement on health care
2018
Mark Meadows
rule under the CRA
reporting requirements
because it fal s under
the exception in Title
5, Section 804(3)(C),
of the U.S. Code.
Social Security Administration
B-329926
September
Representative
Agency action is not a
Hearings, Appeals, and Litigation
10, 2018
Jason Smith
rule under the CRA
Law Manual (“HALLEX”)
because it fal s under
the exception in Title
5, Section 804(3)(C),
of the U.S. Code.
Internal Revenue Service Revenue
B-330376
November
Senator Orrin
Agency action is
Procedure 2018-38
30, 2018
Hatch
eligible for review
under the CRA
“because IRS
submitted the revenue
procedure as a rule”
and “IRS’s submission
triggered Congress’s
review and oversight
powers under CRA.”
Department of Justice
B-330190
December
Senator Edward
Agency action is not a
memorandum to federal
19, 2018
Markey
rule under the CRA
prosecutors along the southwest
because it fal s under
border of the United States
the exception in Title
5, Section 804(3)(C),
of the U.S. Code.
Department of Commerce
B-330288
February 7,
Senator Brian
Agency action is not a
memorandum regarding a
2019
Schatz
rule under the CRA
citizenship question on the 2020
because “it was not
Census
designed to implement,
interpret, or prescribe
law or policy.”
Departments of Health and
B-330811
July 15,
Senator Ron
Agency action is a rule
Human Services and Treasury
2019
Wyden
under the CRA.
guidance entitled “State Relief and
Representative
Empowerment Waivers”
Frank Pal one Jr.
Board of Governors of the
B-330843
October 22, Senator Thom
Two of the three
Federal Reserve System
2019
Til is
agency actions (SR
Supervision and Regulation Letters
Senator Mike
Letters 12-17 and 14-
12-17, 14-8, 15-7
Crapo
8) are rules under the
CRA.
Senator David
Perdue
The third agency
action (SR Letter 15-7)
Senator Michael
is not a rule under the
Rounds
CRA because it fal s
Senator Kevin
under the exception in
Cramer
Title 5, Section
804(3)(C), of the U.S.
Code.
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GAO
GAO
Agency Action
Citation
Date
Requested By
Determination
Board of Governors of the
B-331324
October 22, Senator Thom
Agency action is a rule
Federal Reserve System
2019
Tillis
under the CRA.
Supervision and Regulation Letter
11-7
Board of Governors of the
B-331560
April 16,
Senator Thom
Agency action is a rule
Federal Reserve System
2020
Tillis
under the CRA.
Supervision and Regulation Letter
15-8
Federal Communications
B-332233
August 13,
Senator James
Agency action is not a
Commission order entitled
2020
Inhofe
rule under the CRA
“LightSquared Technical Working
Senator Jack Reed
because it “fal s within
Group Report, et al.”
the APA definition of
an order and not a
rule, and CRA adopts
the APA definition of a
rule.”
Internal Revenue Service Notice
B-332517
September
Senator Chuck
Agency action is
2020-65
15, 2020
Schumer
eligible for review
Senator Ron
under the CRA
Wyden
because “IRS has
submitted the
document as a non-
major rule to GAO for
purposes of CRA.”
Department of Housing and
B-331171
December
Representative
Agency action is a rule
Urban Development guidance
17, 2020
Steve King
under the CRA.
entitled “Assessing a Person’s
Request to Have an Animal as a
Reasonable Accommodation
Under the Fair Housing Act”
Source: Congressional Research Service. Opinions are available on the GAO website at https://www.gao.gov/
legal/other-legal-work/congressional-review-act.
Notes: This table lists agency actions for which Members of Congress asked GAO’s opinion as to whether the
action fal s under the definition of rule under the CRA. For a more in-depth discussion of this issue and for
summaries of each of the opinions listed in this table, see CRS Report R45248, The Congressional Review Act:
Determining Which “Rules” Must Be Submitted to Congress, by Valerie C. Brannon and Maeve P. Carey.
Author Information
Maeve P. Carey
Christopher M. Davis
Specialist in Government Organization and
Analyst on Congress and the Legislative Process
Management
Acknowledgments
Questions from congressional clients regarding legal issues addressed in this report may be directed to
Valerie C. Brannon, Legislative Attorney, who contributed to portions of this report.
Congressional Research Service
33
The Congressional Review Act (CRA): Frequently Asked Questions
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 n ot 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.
Congressional Research Service
R43992 · VERSION 13 · UPDATED
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