pdf22 GAO Letter to Sen. Pat Toomey ("GAO Determination"), 163 Cong. Rec. S6636 (Oct. 19, 2017), available at: congress.gov/crec/2017/10/19/CREC-2017-10-19-pt1-PgS6636-2.pdf3 5 U.S.C. § 801(a)(1)(A).4 5 U.S.C. § 801(a)(1)(F).5 Citing 5 U.S.C. § 801(b)(1).6 Congressional Research Service, The Congressional Review Act: Frequently Asked Questions, No.7-5700 (Nov. 17. 2016); citing 5 U.S.C. § 801(f).7 5 USC § 805.

This process is not subject to filibuster but provides for 10 total hours of Senate debate split equally among parties, though under 5 U.S.C. § 802 (d)(2), the Congress can propose a non-debatable motion to limit debate and further fast-track the process. If passed, once the president signs a joint resolution of disapproval, it cannot take effect and—perhaps more importantly—the agency needs express authority from Congress to issue another regulation in the future that is “substantially the same” (5 U.S.C. § 801 (b)(2)). Finally, judicial review of any “determination, finding, act, or omission” under the CRA is expressly barred (5 U.S.C. § 805).Prior to the Trump Administration, the CRA had been successfully deployed only once, overturning an ergonomics regulation in 2001.

As the Marketplace Lenders Association noted in its comment letter, its members commit to lend at no greater than a 36% APR that is consistent with the Military Lending Act. Loans at rates above this level would appear more likely to gain scrutiny first, and leave the likelihood of challenge for loans below that rate low. 5 U.S.C. §§ 801-808. 85 Fed. Reg. 68742 (October 30, 2020) (available at: https://www.federalregister.gov/documents/2020/10/30/2020-24134/national-banks-and-federal-savings-associations-as-lenders).

Practically speaking, a rule is considered to have been “received by Congress” on the later of its receipt in the Office of the Speaker of the House, its referral to Senate committee, or its publication in the Federal Register. For more information on the congressional procedures used under the CRA (including the “fast track” provisions available to the U.S. Senate), see U.S. Congressional Research Service, The Congressional Review Act (CRA): Frequently Asked Questions (R43992; Jan. 14, 2020), https://crsreports.congress.gov/product/pdf/R/R43992. 5 U.S.C. §801(b)(1), (f).See 5 U.S.C. §801(b)(2). The House and Senate Parliamentarians will ultimately issue a formal determination as to the precise date.

serted that the rule’s expansion beyond those data requests enumerated in Section 1071 imposes significant new compliance obligations and associated costs.The American Bankers Association asserted that the rule is “government run amok” and will increase the cost of small business credit, causing lenders to exit the market and therefore reducing the overall availability of credit for small businesses. Similarly, the Credit Union National Association criticized the rule as overly broad and contended that the complexity and costs of compliance will ultimately lead to less favorable outcomes for small businesses.The Independent Community Bankers of America cited additional consumer privacy risks inherent in seeking sensitive personal information beyond the data points required in Section 1071.Congressional Disapproval of the Small Business RuleUnder the Congressional Review Act, agencies are required to report rules to Congress, which can then consider legislation to overturn these rules. 5 U.S.C. §801(a). If a resolution disapproving of a rule is passed by both houses of Congress and signed by the President — or Congress overrides a Presidential veto — the rule cannot go into effect. 5 U.S.C. § 801(b).On October 18, 2023, the Senate passed Senate Joint Resolution 32 to disapprove the Small Business Rule. The bipartisan 53-44 majority included three Democrats and two independents. On December 1, 2023, the House passed the disapproval resolution in a 221-202 vote, with six Democrats voting to overturn the rule.President Biden vetoed the disapproval on December 19, 2023. The President’s veto message stated that the CFPB rule “would bring much needed transparency to small business lending and improve the ability of lenders and community organizations to meet the most critical needs of America’s small businesses” as there are “acute gaps in capital access for minority- and women-owned businesses.”On January 10, 2024, the Senate voted 54-45 to override the veto, but that fell short of the t

For more information on the Congressional Review Act, see Clients & Friends Memo, Marketplace Lending Update #9: To Thine Own Self Be True? Not Necessarily (May 21, 2021). 5 U.S.C. § 801(f). 5 U.S.C. § 801(b)(2).See supra note 3.See American Express Co. et al v. Italian Colors Restaurant et al., 570 U.S. 228 (2013) (holding that the Federal Arbitration Act does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery).

Any resolution under the Congressional Review Act may address any federal regulation issued in the previous 60 days, as well as rules issued in the last 60 days of a previous Congress. 5 U.S.C. § 801(d)(1). A recent analysis estimated that the new Democratic Congress could use the Act to reach back to at least 1,490 Trump-era regulatory actions based on the Trump Administration’s flurry of regulatory activity in the months leading up to the inauguration of President Biden.Given the 50/50 tie in the Senate, it is unclear whether Senate voting Rules will subject CRA rescission resolution votes to the normal 60% voting requirement or the 50% voting requirement Democrats hope for.Important for Democrats is the fact that any resolution enacted under the Act is not subject to judicial review.

3The CRA provides for additional considerations if Congress passes a resolution of disapproval. 5 U.S.C. §801(a)(3).4See Federal Register, Understanding Public Inspection, https://www.federalregister.

Observers should keep a close eye on these rules and be prepared to engage with the next Congress—should Democrats assume control of both Houses—as it considers using the CRA in 2021.5 U.S.C. § 801(d).Given the House of Representative’s 2020 calendar, the earliest possible date to which the provisions of 5 U.S.C. § 801(d) could extend is May 20, 2020. However, this date almost certainly will be pushed to a more recent date depending on the date on which Congress adjourns for the final time in 2020.

Congress has adopted a joint resolution of disapproval of the CFPB’s arbitration rule under the Congressional Review Act, 5 U.S.C. Section 801 et seq. President Trump’s approval ofthe joint resolution will prevent the implementation of the rule.