Overview of Plan

In its final retrospective review plan, the Department of Labor (DOL) lists eight existing rules which are being reviewed as a consequence of Executive Order 13563 and sets out a framework for identifying significant rules "that warrant repeal, modification, strengthening, or modernization." DOL also highlights its existing regulatory review protocols for complying with the Regulatory Flexibility Act, under which 20 modifications to existing rules were already scheduled. The regulatory reviews are categorized as either "signature" or "other" projects.

Major Rules to Be Revised

Of the eight rules considered in the DOL plan, six fall under the auspices of the Occupational Safety and Health Administration (OSHA) or the Mine Safety and Health Administration (MSHA); these six rules will be the primary focus of this analysis. OSHA has three "signature" and one "other" project, while MSHA has one "signature" and one "other."

OSHA's signature review projects concern the Standards Improvement Project (SIP) and the hazard communications system (HCS). The SIP focuses on removing and revising duplicative, unnecessary, and inconsistent standards. During the retrospective review process, the agency has completed SIP Phase III and prepared to launch Phase IV. Phase III addressed safety and health rules, while Phase IV will focus on construction standards. Phase III rulemakings focused on reducing paperwork and compliance costs for regulated entities. The plan describes the SIP as a "popular project" which "[has] been successful at reducing the burden to employers without diluting existing protections for employees." Phase IV will begin with a request for information, which seeks stakeholder input as to which standards should be revisited.

The hazard communications system (HCS) is designed to communicate information about the contents and hazards of chemicals to users of chemical products. OSHA reports that the HCS modifications will provide benefits to employers, due to both the increased efficiency of producing fewer safety data sheets and the decreased training necessary to familiarize employees with a unified communications system. Although OSHA's plan focuses on benefits to employers, the changes should not reduce worker protections: standardizing warning labels means that workers can more easily learn and understand the risks of the products they are handling.

MSHA's signature project revolves around revising the regulations for approving electrical products for use in underground mines, which have been substantially the same since 1968. MSHA describes this project as a "streamlining and updating effort" which will save time and effort both for manufacturers submitting products for approval and the agency itself. The goal of this project is to "enhance the ability of regulated entities to understand and compile" an application and, therefore, to increase the rate of success.

Both OSHA and MSHA have "other" projects. One OSHA project would assess the implications of adopting a "safety-case approach," under which oil and gas producers would be required to convincingly demonstrate that their processes are adequately safe. An MSHA review would revise the process for proposing civil penalties in order to "induce mine operators to be proactive in their approach to mine safety and health." These projects are at a less advanced stage than the signature projects, but both agencies expect that they will improve efficiency for regulated industries.

Cost Reduction

OSHA's SIP projects are expected to cut both costs and paperwork. While SIP Phase IV is a new project whose savings cannot yet be assessed, SIP Phase III is estimated to save employers $45 million annually. The simplified HCS system is estimated to save employers between $585 million and $798.4 million annually, due to increased productivity, simplified training, and unified labeling.

MSHA's electrical product approval revisions are projected to reduce the rate of returned applications, inquiries from applicants, and overall agency processing time by 20 percent. These reductions are expected to save equipment manufacturers between $500,000 and $1 million each year.

The "other" projects are expected to increase efficiency, but the agencies have not attempted to estimate their cost savings.

Transparency, Outreach, and Public Input

DOL launched an interactive website on March 16, 2011, which allowed the public to suggest both which regulations should be part of the retrospective review and how the agency should conduct the process. The agency published a Request for Information in the Federal Register that directed the public to the interactive website.

DOL also engaged in active public outreach to encourage participation: the Deputy Secretary announced the website at a U.S. Chamber of Commerce meeting, and DOL's outreach offices reached out to "the full range of Department stakeholders." These included personalized contact with the leaders of national labor unions, national and regional worker organizations, and national and regional faith-based, community, and civil rights advocacy groups. Finally, the Office of Public Affairs used traditional and social medial tools to encourage participation.

On June 2, 2011, DOL launched a second website that solicited input into several aspects of the preliminary plan. The final plan stated that "[a]fter reviewing public input, the Department revised the Preliminary Plan to incorporate a discussion of comments received as a result of the Department's engagement with the public through the interactive website."

Public Comments

Over 940 users registered for the website to provide input and view comments, and 113 individual recommendations were submitted. Most of the suggestions focused on particular regulations or guidance that should be considered for review, as opposed to the review process itself. Of the 9 DOL agencies whose regulations were part of the retrospective review, rules promulgated by OSHA, the Employee Benefits Security Adminstration, the Employment and Training Administration, and the Wage and Hour Division received the most comments. OSHA commenters recommended enhancements to existing whistleblower protection programs, such as increasing enforcement and making the filing process more user-friendly. Commenters also urged OSHA to reevaluate the current Permissible Exposure Limits (PELs), standards for worker exposure to various hazards substances.

By July 11, 2011, 1,314 users registered for the second website to provide input on how DOL should revise its preliminary plan. Twenty suggestions were made between the preliminary plan’s May 26 release and July 11. The final plan notes that 420 votes were cast, with 387 of them favoring a comment from the American Society of Pension Professionals and Actuaries that suggested electronic disclosure for materials required by the Employee Retirement Income Security Act of 1974. No related rule is discussed in the final plan. In addition, the American Society of Safety Engineers (ASSE) suggested that OSHA could reduce unnecessary regulatory burdens by improving its ability to keep up with voluntary consensus standards and incorporating up-to-date consensus standards in rulemaking. Commenters also recommended that DOL compare ex ante costs and benefits of regulations with ex post costs and benefits to improve the reviews.

Ongoing Retrospective Review and Other New Initiatives

According to the final plan, DOL's efforts to comply with president’s look-back directive amounted to "formaliz[ing] the Department's system for routine regulatory review and its efforts to continue to undertake similar review on a regular basis." The plan refers to several examples of when DOL's agencies, including OSHA and MSHA, have revisited and revised existing regulations.

DOL's final plan emphasizes that, prior to the executive order, it was already conducting a semiannual agency-by-agency review of its regulations. Agency staff are asked to recommend regulations which should be included on the Semiannual Regulatory Agenda, including recommendations for reconsideration or revision. DOL's Spring 2011 Regulatory Agenda includes 20 regulatory actions which amount to revisions of existing regulations.

The final plan confirms that DOL's existing Regulatory Council (comprised of cross-agency leadership) will be tasked with ensuring that the retrospective reviews required by E.O. 13563 are fully incorporated into the existing process. The Council may also "develop[] best practices for regulatory design and composition that facilitate evaluation of their consequences and promote retrospective analysis," including considering how regulations could be drafted to facilitate evaluation of their effects.

The final plan also identifies a series of factors that help identify candidate rules for retrospective review: stakeholder input; impact on small businesses; age of the regulation; number of entities/workers affected; evidence of non-compliance; relationship of regulation to accidents, injuries, security, or equity; paperwork associated with a regulation; petitions for modification or exemption; technological advances and new scientific research; and transparency and clarity of the rule.