Keeping Regulatory Agency Power in Check

On Tuesday, President Trump signed H.J. Res 83, utilizing the Congressional Review Act (CRA) to officially and forever invalidate the Occupational Safety and Health Administration’s (OSHA) recent overreach of regulatory authority. The rule, informally referred to as the “Volks” rule, gave OSHA the ability to issue citations to employers for failing to record work-related injuries and illnesses during the five-year retention period of recordkeeping, contrary to the six-month statute of limitations.

In December, with the days of the Obama Administration nearing an end, OSHA finalized the “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness” rule. Given the time of its promulgation, the rule became a prime target for Congress to apply the Congressional Review Act. The CRA allows either chamber of Congress to 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 executive for signature. If the President vetoes a resolution, then a two-thirds majority in both chambers of Congress would override the veto. Congress cannot use the CRA at any time, but generally has 60 working days from the time the rule is submitted to Congress and published in the Federal Register.

The Act was critical in keeping OSHA’s attempt to provide itself with an expansion for enforcement in check, but it wasn’t the only government entity to do so. In the past OSHA had numerous blockbuster recordkeeping cases brought forward by accumulating a large number of unrecorded injury and illness cases, spanning as much as a five year period, to send a message to employers about the importance of compliance. In one such instance, the case didn’t go so well for OSHA, igniting the agency to seek its own expansion of enforcement ability. In 2012, the U.S. Court of Appeals for the D.C. Circuit, in a unanimous decision, held in Volks II that OSHA does not have the authority to cite an employer for failure to record work-related injuries and illnesses more than six months after the initial obligation to record the cases occurred. The court held that OSHA’s continuing-violation theory would “subvert” the statute of limitations, and would lead to “absurd consequences.” Even Judge Merrick Garland wrote a special concurring opinion, where he asserted that OSHA’s regulations “cannot reasonably be read” to impose continuing obligations.

Not pleased with this ruling, OSHA sought to finalize the Volks rule and expand its own power. With the court ruling, utilization of the Congressional Review Act and subsequent signing by the President, it gives a clear indication that all three branches of government believed OSHA had exceeded its authority. Though employers are still required to maintain injury and illness records for five years, OSHA is now prohibited from promulgating a rule “in substantially the same form” as the disapproved rule. It’s a nice change to see an agency held in check, rather than watching it expand its authority.

Coulter Young is a Research Associate with the National Center for Policy Analysis.

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