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Congressional Review Act May Not Bar New Ergonomics Standard, Scholars Write, BNA's Occupational Safety & Health Reporter

Thursday, February 23, 2012

Reproduced with permission from Occupational Safety & Health Reporter, 42 OSHR 173 (Feb. 23, 2012). Copyright 2012 by The Bureau of National Affairs, Inc. (800-372-1033) <>

By Stephen Lee

A law widely thought to block future attempts at passing an ergonomics rule may not be as restrictive as commonly believed, according to an article published in the quarterly journal Administrative Law Review.

The Congressional Review Act, enacted in March 1996, forbids an agency from promulgating any regulation that is "substantially the same" as one previously put forward but subsequently voted down by Congress.

In March 2001, Congress used the act to beat back a Clinton-era ergonomics regulation by the Occupational Safety and Health Administration. That remains the only time the act has been used to rescind a rule.

Since then, both labor and industry representatives have cited the Congressional Review Act as the chief reason no future ergonomics regulation can ever move forward.

But because neither Congress nor any court has yet had to consider whether a reissued regulation is substantially similar to a previously vetoed one, the precise definition of substantial similarity is unclear, Adam Finkel and Jason Sullivan wrote in their 76-page Administrative Law Review article, published in December.

Various Interpretations of 'Substantially Similar.'

The authors outline seven possible interpretations of the phrase "substantially similar," some of which are not as sweeping as the interpretation often believed to apply, which bars agencies generally from regulating, in any way, in an area where Congress has disapproved of a specific regulation.

Under one possible interpretation, a new rule could be issued that has significantly greater benefits and/or lower costs than the original rule, Finkel and Sullivan wrote. An agency could, under this interpretation, promulgate a rule that even contains 99.99 percent or more of the same individual provisions as the original rule, and thus is "almost identical in 'form' if that word was used in its most plebian sense."

Under another interpretation, an identical rule could be reissued if external conditions, such as a new understanding of the science or economics behind a rule, have changed, write Finkel and Sullivan.

In conclusion, Finkel and Sullivan said, "so long as the rule as reissued makes enough changes to alter the cost-benefit ratio in a significant and favorable way ... the purposes of the Congressional Review Act will be served, and the new rule should not be barred as 'substantially the same.' "

Good Government Grounds

The two authors further argue against interpreting the "substantially similar" provision too broadly on good government grounds, saying that to do so "could allow expedited joint resolutions to serve as de facto amendments to the original delegation of authority under the relevant organic statute," which they write would be "tantamount to substantively amending the organic statute."

In their article, Finkel and Sullivan also suggest worthwhile revisions to OSHA's 2001 ergonomics rule that could help it steer clear of the limitations placed upon it by the Congressional Review Act. One of their suggestions is a hybrid rule that gives small businesses adequate specificity about compliance, but also allows room for innovation.

Another suggestion for revising the rule would have OSHA focus more closely on musculoskeletal disorders that are truly caused or exacerbated by occupational risk factors, rather than subsuming off-the-job activities within the rule.

Author Seeks to Reverse Notions

Finkel, executive director of the University of Pennsylvania Program on Regulation and a former director of OSHA's health standards division, told Bloomberg BNA Feb. 21 that he hopes his article reverses long-held notions both within the administration and in Congress that ergonomics regulations are forever dead.

"I don't doubt the political difficulty of moving forward, but it troubles me that both Congress and the executive branch have been saying the politics are moot because the law doesn't allow a restart," Finkel said.

Moreover, the spectre of the Congressional Review Act raises implications for other federal regulatory agencies, Finkel said.

"There's a fair amount of trepidation at other agencies," he said. "People say, 'Look what happened at OSHA. They tried something, failed, and they were worse off for trying and failing. It put ergonomics in a bad place, and we don't want to do that.' So are there regulations that should be proposed that aren't even getting out the door because they're looking at what happened at OSHA?"

Industry Lawyer Unconvinced

Jonathan Snare, an industry attorney at Morgan, Lewis, and Bockius LLP, told Bloomberg BNA Feb. 22 he found the article well-researched but ultimately not convincing.

To Snare, who served as acting OSHA head and deputy solicitor of labor during the George W. Bush administration, a "strict constructionalist" reading of the phrase "substantially similar"-which would be based on the plain English meaning of the words, and which would likely bar a future ergonomics rule-is just as viable as the ones laid out by Finkel and Sullivan.

"It's a point of view," Snare said of the article. "But I also believe that a different interpretation could suggest that prohibition is quite a bit broader."

When asked by Bloomberg BNA in 2010 whether or how his administration would seek to circumvent the Congressional Review Act in promulgating an ergonomics rule, David Michaels, OSHA administrator, declined to answer, saying he would defer to the opinion of the solicitor of labor.

Before joining the administration, Michaels supported an ergonomics standard. For example, in 2006 he told a House of Representatives panel that OSHA's lack of an ergonomics rule was a "public health crisis."