Cong. Review Act is bad public policy

Last night, I read a bunch of posts in the blogosphere and then watched a segment on MSNBC's Keith Olberman talking about the Congressional Review Act of 1996 (CRA) and how it could be used to undue regulations issued in these final weeks of the Bush Administration.  Some people seem to be chomping at the bit thinking that the CRA is the answer to their disdain for Bush's policies.  In the short term, they may be satisfied, but in the long term, the CRA is bad public policy.  That's the debate that I wish was taking place. 

Back to Basic Civics 101.  The Congressional Branch passes laws and delegates authority to the Executive Branch and its federal agencies.  If we look at OSHA, for example, its broad authority to regulate hazards that kill and injure workers comes from the OSH Act of 1970---a law that Congress passed.  If regulated parties believe they are harmed by OSHA's regulatory action, they have rights to seek judicial review in the Judicial Branch and there are other remedies offered through the Executive Branch.

When President Clinton signed the "Small Business Regulatory Enforcement Act of 1996," I thought it was a terrible law.  A vast majority of Congressional Dem's endorsed it, ignoring the fact (HELLO!) that it was an outgrowth of the Newt Gingrich-led "Contract on with America."  Two major provisions in this 1996 law were the Congressional Review Act and SBREFA panels.  (Yuck! and Yuck!) 

The SBREFA provisions mandate that OSHA (as well as EPA) add a whole new step in the rulemaking process -- the SBREFA panels---which further delay the snail's pace for issuing more protective workplace standards.  (Frankly, I object to the notion that small businesses have some special status when it comes to rulemaking.  If anyone deserves special status, it's the WORKERS.)  The SBREFA process inappropriately gives small businesses the right to influence the content of the proposed rule, in advance of any other interested party.    

The SBREFA part of the Act is bad enough, but then add on the Congressional Review Act, and this 1996 has been a disaster for worker protection standards.  Think of it this way: if OSHA manages to jump through the small business hurdles and objections (empowered by SBREFA) to get out an OSHA health or safety standard, at the end of the day, a misinformed or misguided Congress has the power to kill the rule in a snap using the Congressional Review Act.  (Then off to the President for signature or veto.)    

Let's revisit the most famous use of the Congressional Review Act and see if we really think giving this authority to Congress was a good idea.

OSHA and other government scientists spent nearly a decade developing a standard to reduce workers' risk of developing musculoskeletal disorders (MSDs).  The authority for developing this rule was delegated by Congress by the OSH Act of 1970.  After scads of public meetings, public hearings, comments on pre-proposal drafts, comments, comments & more comments (see Chronology here )   ---and then loads of industry-backed shenanigans implemented through congressional appropriations riders---a final rule to protect workers from MSD's was published on November 14, 2000. The effective date was January 1, 2001. 

These PREVENTABLE musculoskeletal injuries cause substantial harm each year to 600,000 workers and their families, and cost the economy annually $20 Billion.  Opponents of OSHA's ergonomic regulation might not have liked what the scientific evidence revealed, but it is what it is:  Ergonomic hazards pose a significant risk to workers' health AND there are feasible means to reduce these risks.

Just two months later, a new Congress comes to town, including 12 freshman Senators and 39 freshman congresspersons.   Many were riding in on GW Bush's coattails.  

They were sworn in, counted some Electoral College votes on January 6 (G.W. Bush won), and then adjourned until January 20 when their legislative days really began.  On March 6, resolutions were introduced in the House (H.J. Res 70, introduced by Linder (R-GA)) and the Senate (S.J. Res 6, introduced by Nickles (R-OK)) to "disapprove" of OSHA's ergonomics rule.  The resolution passed both chambers of Congress and President Bush signed it into law on March 20, 2001.  Just like that, years of effort to prepare a rule to protect workers occupationally-related musculoskeletal disorders is obliterated.

What the heck did the Members of Congress who voted to "disapprove" of OSHA's rule, really know about the scientific evidence related to ergonomic hazards and injuries, and the practical means to prevent them?   Certainly not more than OSHA's scientific and public health experts who spent tens of thousands of hours studying, analyzing and discussing it.

From a sound public policy perspective, is it wise for us allow Members of Congress (who have no scientific expertise on the matter) to have power to wipe out a rule like OSHA's ergonomics standard in a matter of minutes with an up or down vote??  Talk about political interference in agency science.  

Back to U.S. Civics 101: Congress created OSHA to be this expert body, and interested parties have rights within the OSH Act and other administrative laws to participate in and influence the content of OSHA's rule.  And, if interested parties believe they are harmed, they have remedy in the Legislative Branch.

Another very troubling part of the CRA is Section 801(b)(2) says that if a rule is "disapproved" under the CRA, the agency:

"...may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule."

So I guess before worker advocates begin advocating for rules to protect workers from MSD's, we better ask Members of Congress to undue what they did using the CRA.

The descriptions of the CRA that I've been reading and hearing over the last week suggest erroneously that the law was especially designed to allow Congress to undo regulations issued by an outgoing Administration in its final weeks.   Not so.  The law gave Congress the mechanism to review and disapprove agencies' rules, no matter when they are issued.  That's a HUGE public policy issue that should be talked about. 

Let's review the highlights lowlights of the Congressional Review Act of 1996 (CRA):

The CRA requires agencies to send a report to Congress about all major rules (i.e., impact on economy of $100 million or more) at least 60 days before the proposed effective date.  This mandatory report must include, among other things, a copy of the rule and the regulatory (economic) impact analysis.  The report is referred to the House and Senate committees with jurisdiction over the agency. 

The CRA specifically states that a rule cannot take effect if the report is not submitted to Congress.  There are exceptions however, such as, if the agency finds "good cause that notice and public procedures thereon are impractible, unnecessary, or contrary to the public interest," or if the President determines that a rule should take effect because of imminent threat to health or safety or other emergency.

Congress, in passing the CRA, gave ITSELF a 60 day period to review final agency regulatory action.  For those who suggest that the law was especially designed to give Congress the power to strike down regs issued in an Administration's final months, I believe that it has more to do with Congress' history of being out of session between a Presidential Election and Inauguration Day.   The law granted them the 60 day review period, but if they are out of session for 10 weeks between November and January 20, they wouldn't be able to exercise their review power.  It's for this reason that this provision was included in the CRA:

Section 802(e)(2) if the report under section 801(a)(1)(A) was submitted during the period referred to in section 801(d)(1), after the expiration of the 60 session days beginning on the 15th session day after the succeeding session of Congress first convenes.

It accomodates Members of Congress' traditional absence during November, December and January.

The resolutions "disapproving" an agency's rule are not remarkable.  The one killing OSHA's ergonomics standard read:

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Department of Labor relating to ergonomics (published at 65 Fed. Reg. 68261 (2000)), and such rule shall have no force or effect."

Period.  End of story.

Researcher Morton Rosenberg of the Congressional Research Service has written several reports on Congress' use of the CRA.  In his 2008 report, "the Congressional Review Act after a Decade," he lists about 50 times that resolutions were introduced by Members of Congress who attempted to use the CRA to "disapprove" an agency rule.  Only once--OSHA's Ergonomics Rule---did Congress succeed in nullifying a regulation.  That was a terrible blow to protecting the health of our nation's workers.

If we examined the 50 other regulations that were targets of the CRA but not "successfully" nullified, I bet in most cases, the interests groups and their supporters in Congress used a variety of the other administrative and judicial avenues to challenge these rules.  These measures exist and have been used masterfully for decades. 

Using the CRA might satisfy interest groups short-term desires, but in the long-run (and for me, when the political tables are turned) the CRA is bad public policy.  Just ask workers and public health advocates who fought for decades for a rule to reduce injuries from ergonomic hazards.  The CRA sucks!