The Congressional Review Act, 5 U.S. Code § 801 et seq, enables Congress to disapprove a final rule issued by a federal agency. A rule disapproved using this mechanism is not only nullified; the agency is also prevented from reissuing a “substantially similar” rule in the future unless Congress authorizes it to do so via subsequent legislation. Congress generally has 60 days to review rules, but there is a provision that also allows an incoming Congress to review the last 60 days of rules issued during the previous Congress.

In general,

  • Any member of the House or Senate can introduce a joint resolution disapproving (i.e., eliminating) a final agency rule within 60 days of continuous session after agencies submit the rule to Congress.
  • Once introduced, resolutions of disapproval are referred to the committees of jurisdiction in each house of Congress.
  • A simple majority in both houses of Congress is required for the measure to pass and be sent to the President.
  • If the President vetoes the resolution, a 2/3 majority in both houses would be required to override it.
  • The CRA is not subject to judicial review: “no determination, finding, action, or omission under this chapter shall be subject to judicial review.
  • There is a fast-track process in the Senate.
  • There is a special look-back process
    • If a rule is submitted to Congress fewer than 60 working days before it adjourns its final session (adjourns “sine die”) a new period for congressional review becomes available to the incoming session of Congress; for purposes of calculating the timeframe for Congressional review, all rules are treated as if they had been submitted to Congress and published in the Federal Register on the 15th working day of the incoming Congress. At this point, a new 60-day window of review is available.
    • This reset provision creates a condition immediately following a presidential election where an incoming Congress might exercise the disapproval procedure without the threat of a presidential veto.

The Congressional Review Act was passed as part of the Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. 104-121, Sec. 251.

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