The 1996 Congressional Review Act has been getting a lot of use since President Trump’s inauguration. On March 27, 2017, President Trump signed House Joint Resolution 37, revoking the “blacklisting regulations” put in place following former President Obama’s July 2014 Executive Order on Fair Pay and Safe Workplaces (EO 13673). As we discussed in an earlier post, the EO and the regulations implementing it directed federal agencies to take into account an employer’s workplace safety and other labor law violations as part of the their procurement decisions.
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. A simple majority in both houses of Congress can overturn agency rules and regulations if the president signs the joint resolution.
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.
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 very soon. On March 22, 2017, the Senate passed House Joint Resolution 83, another CRA resolution of disapproval that will eliminate OSHA’s controversial Volks Rule. The Volks Rule refers to a 2012 holding by the D.C. Circuit Court of Appeals, in which the court found that an OSHA recordkeeping citation violated the Occupational Safety and Health Act’s six-month statute of limitations. See AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).
OSHA had argued unsuccessfully that recordkeeping violations are not subject to the limitations period because employers have an ongoing obligation to make and maintain the records. But the court ruled that OSHA must issue a recordkeeping citation within six months of when the employer first was required to create the record.
There is no reason to doubt that President Trump will sign House Joint Resolution 83, which means two controversial and burdensome regulations imposed by the previous administration will be off the books.
It is worth noting that the CRA will make it difficult for a future President to bring them back. New regulations that are substantially the same as the revoked regulation may not be reissued 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. Stay tuned here for future updates on this quickly changing regulatory landscape.
More on the Congressional Review Act and Fair Play and Safe Workplaces—
The constitutional limits on Congress’ power to undo federal regulations (Feb. 6. 2017)
The fate of Fair Play and Safe Workplaces under President Trump (Feb. 5, 2017)
The final rules implementing Executive Order 13673 (Sept. 5, 2016)