Passed in 1996, the Congressional Review Act (CRA) has been getting a lot of use since President Trump’s inauguration. Just in the last two months, Congress has now used it twice to permanently roll back safety regulations.
The CRA is an obscure legislative tool that can rescind recent executive actions, and thereby limit agency authority. Under the CRA, Congress has 60 legislative days (which are counted differently than calendar or business days) to pass a “joint resolution of disapproval” in the House and Senate. Joint resolutions of disapproval cannot be filibustered; thus, a simple majority in both houses of Congress can overturn agency rules and regulations if the president signs the joint resolution.
On March 27, President Trump signed House Joint Resolution 37, revoking the “Blacklisting” regulations put in place following former President Obama’s Executive Order on Fair Pay and Safe Workplaces (EO 13673). The EO and regulations directed federal agencies to take into account an employer’s workplace safety and other labor law violations as part of the agencies’ procurement decisions.
There were significant questions regarding due process concerns with the Blacklisting regulations. Industry strongly criticized the regulations because they allowed agencies to exclude contractors based on mere accusations, such as safety citations that had not yet gone through any adjudicatory proceedings.
Now awaiting Trump’s signature: Repeal of the “Volks II Rule”
Revoking the Blacklisting regulations was the first of several actions President Trump and his allies in Congress intend to pursue to reduce the administrative/regulatory burdens on employers. The next step in this rollback may come in the near future.
On March 22, 2017, the Senate passed House Joint Resolution 83, another CRA resolution of disapproval that will eliminate OSHA’s controversial “Volks” final rule and restore the original “Volks Rule” set by a federal court.
The history of this rule is complicated. In the Volks case, OSHA cited a company for recordkeeping violations more than six months after the company allegedly should have made certain records. OSHA argued that employers always have an ongoing obligation to create, maintain, and update records, effectively deleting the Occupational Safety and Health Act’s six-month limitations period.
The U.S. Court of Appeals for the D.C. Circuit disagreed in 2012 and vacated the citation, finding that OSHA’s approach violated the six-month statute of limitations. The “Volks Rule” thus meant that recordkeeping citations must be issued within six months of when the company had a duty to create the record.
Just before leaving office, however, the Obama administration attempted to undo the Court’s ruling by issuing a final rule that effectively adopted OSHA’s losing position. The current CRA resolution in Congress seeks to restore the D.C. Circuit ruling so that the six-month limitations period applies to recordkeeping citations.
There is no reason to doubt that President Trump will sign House Joint Resolution 83. The White House has said it “strongly supports” the resolution, which means that two controversial, burdensome regulations imposed by the previous administration will be off the books.
Long term impact
CRA actions are not subject to judicial review, and under the CRA, any new regulations that are substantially the same as the revoked regulation may not be re-issued unless Congress passes another resolution overturning the first. In other words, if a future presidential administration sought to bring back the Blacklisting regulation or the Volks Rule, Congress must first pass a law specifically authorizing it.