CRA first cut its teeth on the Ergonomics rule

On November 14, 2000, OSHA published the Ergonomics Program final rule in the Federal Register. OSHA claimed that nearly 600,000 musculoskeletal disorders (MSDs) with days away from work were reported each year by general industry employers. The agency warned that exposure to ergonomic risk factors leads to MSDs at work.

Workings of the CRA

Under the CRA, if Congress enacts a joint resolution of disapproval within 60 days after a rule is submitted, the rule must not take effect (or shall not continue in effect). For a rule to be invalidated, the President must sign the joint resolution, or, if vetoed by the President, Congress must override that veto.

Importantly, the Act states, “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.”

Latest court case

Congress has since issued other CRA disapproval resolutions. The one tied to the recent court case impacts a 2016 Federal Communications Commission (FCC) final rule that amended data breach reporting obligations. This disapproval was signed into law in April 2017.

The trouble started when FCC published a rule in 2024 to again revise its data breach reporting requirements. Petitioners sought judicial review of that rule, contending, among other things, it violates the CRA because it is “substantially the same” as the 2016 amendments.

Court majority finding

Now, in a two-to-one decision, the U.S. Court of Appeals for the Sixth Circuit denies the petitions for review in case numbers 24-3133, 24-3206, and 24-3252. The judges emphasize that Congress disapproved the entire 2016 rule submitted by the FCC. Therefore, the two rules must be wholly compared, not just their components, the court reasons. If Congress intended to prohibit FCC from issuing a new rule that was substantially the same as any part of a prior rule, it could have said so, argues the opinion.

The court used the Oxford English Dictionary to define “substantially” and declares that the two rules are not substantially the same. According to the Sixth Circuit, the 2024 rule:

• Is a “mere subset of the broader compendium of privacy rules” from 2016,
• Extends reporting requirements to telecommunications relay services providers,
• Has materially less prescriptive language regarding what goes in a customer notice, and
• Defines “breach” differently and includes an exception.

Therefore, the court concludes that FCC’s issuance of the 2024 rule did not violate the CRA. The petitions for review are denied by the court majority.

Court minority finding

The minority argues that:

• The majority did not focus on the similarities of the two rules, and the differences were minor;
• The two rules adopted “nearly identical regimes for reporting breaches”;
• By disapproving the whole 2016 rule, Congress disapproved each of its parts; and
• The two rules are substantially the same and, therefore, the CRA blocks the new rule.

Implications

The case gives OSHA a path to publish a narrow or different Ergonomics rule. For example, the agency could focus a rule on:

• Ergonomics for a particular high-hazard industry(ies);
• A particular MSD (like back injuries) or risk factor (like lifting); and/or
• Certain ergonomics program elements, e.g., hazard assessment and control measures OR employee training and reporting.

Ultimately, a new rule could enable OSHA to tackle work-related MSDs, which the agency claims “are among the most frequently reported causes of lost or restricted work time.”

The petitioners may seek to have the "full" Sixth Circuit review the case, given the court split and the broad implications of the case. Instead of the three-judge panel, all active judges on the Sixth Circuit would hear the case, if a rare en banc review is granted. Later, the case could head for the Supreme Court. Yet, the high court could decide not to take it, and the appeals court decision stands. For now, the new interpretation marks a breakthrough, handing agencies a roadmap to maneuver through CRA barriers.

Key to remember

OSHA’s Ergonomics Program rule was struck down by the CRA in 2001, but a new court opinion clears the way for the rulemaking to return.