Washington Update: Ensuring representation, or reinforcing bureaucracy?

The spring regulatory agenda, released May 21, tees up several rules OSHA intends to issue in the next few months. Final rules on modernizing recordkeeping, walking/working surfaces, and eye and face protection are expected by the end of summer; proposed rules on beryllium and cranes and derricks are scheduled for the fall.

Some of the rules listed in the agenda have been in the works for more than 10 years. They have been scrutinized by the White House during regulatory reviews, by Congress during committee hearings and by the public during comment periods. But one senator is proposing to add another layer to this process.

In the Regulation Sensibility Through Oversight Restoration Resolution (S. Con. Res. 17) introduced in March, Sen. Mike Rounds (R-SD) has proposed creating a new joint select committee that would review current rules and offer recommendations for how Congress can review rules before they are enacted.

The committee would be temporary, but its members would analyze the feasibility of a permanent joint committee. If that permanent committee is created, it would have up to one year to review every new agency rule determined to have a $50 million annual effect on the economy. If the committee has objections to proposed rules, it could order agencies to rewrite them.

Rounds called his resolution a solution to “regulation without representation.”

“The idea that unelected and unaccountable bureaucrats should be allowed to make sweeping rules and regulations with no recourse should be a concern to every American, regardless of political affiliation,” Rounds said June 2 on the Senate floor. “I firmly believe that regulations should be reviewed by elected officials – those who are accountable to the American people through the democratic process.”

In his speech, the senator made it clear that he supports “good rules” that keep workers safe and his concerns lie with “bad rules.” The resolution on May 20 was referred to the Senate Rules and Administration Committee, where it remained at press time.

Certainly the senator has a point: Outdated rules do exist. But would the RESTORE Resolution hamper more than it helps? At least one expert asserts it could lead to duplicative congressional activities and authority – and even may be unconstitutional.

RESTORE concerns

Amit Narang is a regulatory policy advocate with Public Citizen, a Washington-based nonprofit watchdog group and think tank. To Narang, the problem – at least with OSHA – isn’t overregulation, but inaction.

“We’ve been disappointed with the slow pace with which OSHA is developing and finalizing new workplace safety regulations,” he said. “And we think this [resolution], if it became law, would increase the delays.”

In some respects, Congress already has the oversight authority Rounds is seeking through his resolution. A variety of House and Senate committees can hear testimony on the effectiveness of current and proposed rules, and Congress can pass bills directing agencies to create rules. Furthermore, the Congressional Review Act gives lawmakers the power to revoke new agency rules they disapprove. This authority famously was used to reject OSHA’s short-lived Ergonomics Standard.

But Narang raised another concern regarding the RESTORE Resolution: It could lead to Congress stepping on the president’s toes. Under the Constitution, Congress is tasked with creating laws, and the executive branch implements and carries out those laws. Narang said the resolution could expand Congress’s authority by allowing the permanent joint committee to directly amend rules under development, which could violate the separation of powers.

Constitutional and congressional overlap concerns aside, Narang is worried about which rules Rounds’ committee would target. The senator offered no examples of specific burdensome rules in either his Senate floor speech or his resolution. At press time, Rounds’ office had not responded to Safety+Health’s requests for comment.

“Our concern is they would end up going after rules that are still necessary, that are still protecting workers in dangerous workplaces,” Narang said.

The opinions expressed in “Washington Update” do not necessarily reflect those of the National Safety Council or affiliated local Chapters.