Progressive think tank calls for repeal of the Congressional Review Act

Washington — The Center for Progressive Reform is calling for legislation to end the Congressional Review Act and restore the rules eliminated under it, in a report released May 2.

CRA allows lawmakers to revoke regulations with a simple majority in the House and Senate, along with the president’s signature. The Senate has 60 “session” days to pass its resolution if it seeks to invoke cloture and avoid a 60-vote threshold.

The Congressional Review Act: The Case for Repeal states that CRA resolutions have been used 15 times since President Donald Trump’s inauguration. One of those instances was for the “Volks” rule, published Dec. 19, 2016, in the waning days of President Barack Obama’s final term. The rule increased the statute of limitations to five-and-a-half years from six months for employers who failed to keep injury or illness data.

“In addition to strengthening OSHA enforcement efforts, this rule would have reinforced the agency’s efforts to identify broader trends in occupational health and safety harms that could inform future rulemakings,” the report states.

In addition to revoking a rule, CRA prevents future issuance of another rule in “substantially the same form” as the disapproved regulation. CRA also “prohibits judicial review of any ‘determination, finding, action or omission,’” according to an October 2001 Congressional Research Service report.

“How different a rule would need to be so as not to be ‘substantially the same’ is unclear,” the CPR report states. “Faced with this uncertainty, though, OSHA has conspicuously avoided tackling [musculoskeletal disorders], even for specific industries where these injuries are particularly egregious, such as poultry processing, in the nearly two decades since the CRA resolution passed.” The report adds that MSDs account for about one-third of all workplace injuries and have a total direct and annual cost of $54 billion – according to the Bureau of Labor Statistics and OSHA, respectively.

The first use of CRA’s resolution of disapproval came about five years after the law passed in 1996, and it was a repeal of OSHA’s ergonomics program standard implemented in 2000. President George W. Bush signed the resolution early in his first term.

One supporter of CRA, the Pacific Legal Foundation, states on its Red Tape Rollback website that Congress could repeal even more regulations because “many agencies failed, for whatever reasons” to send required reports on rules to Congress. It contends that the 60-day review clock begins on the later of two days: on a rule’s publication date or when the regulation is sent to congressional lawmakers for review.

“Any rule an agency has failed to submit to Congress is unenforceable under the CRA and remains vulnerable to Congress’s disapproval when it is finally properly reported,” according to the Red Tape Rollback website.

In May 2017, Sen. Cory Booker (D-NJ) introduced the Sunset the CRA and Restore American Protections Act of 2017, also known as the SCRAP Act. At press time, that legislation remained stalled in the Senate Homeland Security and Governmental Affairs Committee.