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President-elect Donald Trump and the Republican Congress could turn to a little-used law to undo safety regulations pushed through by the Obama administration — and what little precedent they have to follow is in their favor.
The Congressional Review Act has only been successfully used once to undo a federal agency regulation. The agency it was used against: the U.S. Occupational Safety and Health Administration. In 2001, President George W. Bush and Congress used the 1996 law to derail OSHA’s efforts to regulate ergonomics via a formal standard.
The act gives the legislature 60 legislative days to disapprove of a regulation, but it is rarely invoked because it requires either presidential approval to enact a resolution of disapproval or a two-thirds supermajority vote in both houses to overcome a presidential veto.
The incoming Republican-led Congress, with the support of the new president, could revoke any standards President Barack Obama’s administration tries to cram in before the clock runs out — and OSHA’s proposed rule clarifying that employers have a continuing obligation to maintain injury and illness records could be a prime candidate, experts said.
The proposed rule, currently under final review by the White House Office of Management and Budget, was issued in response to the U.S. Court of Appeals for the District of Columbia Circuit’s 2012 decision in AKM L.L.C., dba Volks Constructors v. Secretary of Labor, which slapped down the agency’s attempt to cite and fine Volks for failing to properly record certain workplace injuries and maintain its injury log more than six months after the last unrecorded injury occurred.
“It’s subject to the Congressional Review Act, so that would be a quick and easy way to kill it, and I think that would be a target because that’s a blatant attempt to circumvent a court ruling,” said John Martin, a Washington-based shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C.
The election of Donald Trump will likely lead to changes in strategy at the U.S. Occupational Safety and Health Administration that would be welcomed by many employers.