On June 2, 2011, the Department of Labor (DOL) announced that it had published its “Preliminary Plan for Retrospective Analysis of Existing Rules,” and that the public was invited to submit comments on the plan by July 1, 2011.  The preliminary plan is DOL’s next step in effecting compliance with Executive Order 13563, issued by President Obama on January 18, 2011.  The Executive Order requires agencies to determine whether existing regulations “should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.”

In March, DOL solicited public input on how it should go about conducting a review of existing regulations.  The agency received 113 recommendations.

The preliminary plan sets forth the following factors and processes that DOL says it will use in setting priorities for reviewing existing regulations:

• Stakeholder input
• Impact on small businesses
• Age of the regulation:  Older regulations may be prime candidates for review, “particularly if the regulated activity or industry has been affected by technological changes that impact safety or compliance.”
• Number of entities/workers affected, with priority given to regulations that affect the greatest numbers of entities or workers.
• Evidence of non-compliance:  DOL will determine whether non-compliance is related to confusion about how to comply with the regulation.  Employers should note that DOL states that data from across DOL’s agencies will be available through a planned procurement in FY 2011 that will aid in these efforts.
• Relationship of regulations to accidents, injuries, security or equity.  DOL states that a high number of fatalities or injuries, for example, may indicate that the regulation is inadequate or that compliance is a problem, and that a decrease in such occurrences may indicate that the regulation may be working as intended.
• Paperwork associated with a regulation
• Petitions for modification or exemption
• Technological advances and new scientific research
• Transparency and clarity.

DOL’s preliminary plan may be found on the FortneyScott website.