Despite Flurry of New Rulemakings, DOL Continues Retrospective Review

by Lynn White

On February 3, 2015, the U.S. Department of Labor (DOL) issued a Request for Information (RFI) on “how the Department can increase the effectiveness of its significant regulations while minimizing the burden on regulated entities.”  The RFI is a continuation of the agency’s efforts to comply with President Obama’s Executive Order 13563, which requires agencies to review existing regulations to determine whether they “may be made more effective or less burdensome.”  DOL published an RFI on March 21, 2011 requesting information to help the agency develop the Preliminary Plan for Retrospective Analysis of Existing Rules it published on May 20, 2011.  After gathering additional public input, the agency published its Plan for Retrospective Analysis of Existing Rules in August 2011. 

DOL seeks comments from the regulated community, academia and public on how it can “prepare workers for better jobs, improve workplace safety and health, promote fair and high-quality work environments, and secure a wide range of benefits for employees and those who are seeking work, all in ways that are more effective and least burdensome.”  The agency is specifically requesting information on the following:

• What regulations should be considered for review or modification? 
• What reporting requirements and information collections can be streamlined? 
• What regulatory reforms may require short-term cost increases, while providing long term savings? 
• How should the Department capture information about changes in firm and market behavior in response to a regulation? 
• What should the agency review to determine estimated costs and benefits of existing regulations? 
• What information would help better assess the long-term impact of regulatory reforms on important protections?

Stakeholders have until February 25, 2015 to submit comments. 

The RFI comes at a time when several programs in DOL have embarked on unprecedented regulatory agendas.  The agency’s Fall 2014 Regulatory Agenda has dozens of rules listed that are in the proposed or final rule stage.  The DOL Office of Federal Contract Compliance Programs (OFCCP), which enforces equal employment opportunity requirements for federal contractors, alone has five rulemakings listed, including a proposal to revise the program’s sex discrimination guidelines that is currently open for public comment.  OFCCP also recently finalized three rulemakings, two that drastically changed federal contractor affirmative action and nondiscrimination requirements for veterans and individuals with disabilities and another prohibiting discrimination based on sexual orientation or gender identity. 

Needless to say, while DOL’s efforts to conduct a retrospective review of existing rules are admirable, many stakeholders are still trying to determine the impact of the flood of new regulations and proposals.  At a minimum, DOL should extend the comment period to allow the public to meaningfully consider the questions the agency presented and provide adequate feedback.