Congressional Review Act | Overview and Tracking

4/15/2021

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Introduction

The Congressional Review Act (CRA), is a little-known oversight tool Congress may use to overturn final rules issued by federal agencies. The CRA can be used at all times during a Congress, but is most frequently used during a change in administration. While over 200 joint resolutions of disapproval for more than 125 rules have been introduced since the CRA’s enactment, the method has only successfully been used to overturn a total of 17 rules—one in the 107th Congress, and 16 in the 115th Congress. 

Enacted as part of the Small Business Regulatory Enforcement Fairness Act in March of 1996 as an effort by Congress to increase its oversight of federal rulemaking, the CRA requires federal agencies to report their rulemaking activities to Congress, and provides Congress with a set of procedures to overturn, or disapprove of those rule. For more information on the inner workings of the CRA, and a tracker of actions-to-date in 2021 see below or contact the NCSL staff.

Overview of the Congressional Review Act (CRA)

The CRA requires agencies to submit final rules—major rules, non-major rules, and interim final rules—to Congress and the Government Affairs Office (GAO) prior to the rules taking effect. If an agency fails to submit a rule, members of Congress can request a formal opinion from GAO as to whether an unsubmitted action meets the CRA definition of a rule, and therefore must be submitted under CRA procedure. If GAO determines that a rule meets GAO requirements, the Senate publishes such an opinion in the Congressional Record. The rules that have been submitted under the CRA can be found here. In the rare instance, the CRA can be used to rescind guidance documents as GAO has set precedent by issuing opinions that certain guidance qualify as “rules” under the CRA because they represented “general statements of policy.”

Under the CRA, once the rule is submitted to Congress, any member can introduce a joint resolution disapproving of an agency’s final rule, at which point only a simple majority in both chambers is needed for the measure to head to the president’s desk. If the president vetoes a resolution, a two-thirds majority vote in both chambers would be necessary to override.

The time frame to use the disapproval procedure is generally 60 days of continuous session—every calendar day, including weeks and holidays, and exclude only days that either chamber (or both) is gone for more than three days following an adjournment resolution—from the time at which a rule is submitted to Congress. If a rule was not submitted, but the GAO determines it meets CRA requirements, the Senate has a procedure in place in which it may consider the date the opinion was published in the Congressional Record as the beginning of the period for that particular rule.

Notably, the CRA contains a “reset,” or “lookback” provision—under Section 801(d) of the CRA—if a rule is submitted to Congress within 60 session (Senate) or legislative (House) days before it adjourns its session sine die, a new period for congressional review opens for the incoming session of Congress. That Congress then operates as though the rules had been submitted to Congress and the Federal Register on the 15th working day of the incoming Congress, at which point a new 60-day review period is opened.  The “lookback period” for the incoming Congress is Aug. 21, 2020.

The House has no expedited procedure for consideration, while the Senate has “fast track” provisions which mean a CRA joint disapproval resolution cannot be filibustered if acted on within a 60-days-ofSenate-session period, beginning on the date when the rule has been submitted to Congress and published in the Federal Register.

If a resolution of disapproval is signed into law or Congress overrides a presidential veto, the rule in question is prohibited from going into effect or continuing in effect immediately and “shall be treated as though the rule had never taken effect.”

Additionally, the federal agency which promulgated the rule is prohibited from “reissuing” the same regulation in the future or developing a regulation that is “substantially” similar, unless the new, or revised, regulation is “specifically authorized by a law enacted after the date of the joint resolution disapproving the original review. The CRA omits language defining the scope of “substantially the same,” and declines to indicate who would make such a determination. Section 805 of the CRA notes that any “determination, finding, action, or omission,” made pursuant to the CRA is shielded from judicial review—a provision which most courts have upheld.

Below, NCSL will provide updates on which joint resolutions have been signed into law, are awaiting the president’s signature, and have passed either the House or the Senate. For actions prior to 2021 please see NCSL's Congressional Review Act Resolution Tracker. Please check back periodically, as the website will be updated as action is taken.

Introduced Joint Resolutions of Disapproval

Bill Resolution Issuing Agency Federal Register Citation Date of CRA Action
S.J.Res. 13 | H.J. Res. 33 Update of Commission's Conciliation Procedures Equal Employment Opportunity Commission 86 FR 2974 3/23/2021
S.J. Res. 14 H.J. Res. 34 Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review Environmental Protection Agency 85 FR 57018  3/25/2021
S.J. Res. 15 | H.J. Res. 35 National Banks and Federal Savings Associations as Lenders Department of the Treasury 85 FR 68742  3/25/2021
S.J. Res. 16 H.J. Res. 36 Procedural Requirements and Resubmission Thresholds Under Exchange Act Rule 14a-8 Securities and Exchange Commission 85 FR 70240  3/25/2021
H.J. Res. 37 Securing Updated and Necessary Statutory Evaluations Timely  Health and Human Services 86 FR 5694 3/29/2021
H.J. Res. 38 Hearings Held by Administrative Appeals Judges of the Appeals Council  Social Security Administration 85 FR 73138  4/01/2021

Joint Resolutions of Disapproval | Passed Single Chamber

Bill Resolution Issuing Agency Federal Register Citation Date of Chamber Passage
S.J. Res. 14  Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review Environmental Protection Agency 85 FR 57018 

4/28/2021

52-42

Joint Resolutions of Disapproval | Awaiting the President's Signature

Information will be added to this section once there are passed Joint Resolutions of Disapproval waiting for the President's signature. 

Signed Joint Resolutions of Disapproval

Information will be added to this section once the President has signed a Joint Resolution of Disapproval. 

Other Resources