DHS Issues Preliminary 21st Century Plan to Review Existing Regs
The Department of Homeland Security has issued its Preliminary Plan for Retrospective Review of Existing Regulations, which is required under Executive Order 135361 and is part of the President’s plan to create a “21st-century regulatory system.”
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DHS states that its Preliminary Plan is designed to create a process for identifying regulations that may be obsolete, unnecessary, unjustified, excessively burdensome, or counterproductive. The DHS retrospective review process is intended to facilitate the identification of rules that warrant repeal or modification, or strengthening, complementing, or modernizing, where necessary or appropriate.
(The White House recently posted 30 preliminary plans for “21st Century” regulations that were submitted by government agencies, including DHS’. See ITT’s Online Archives or 05/31/11 news, 11053130, for BP summary.)
Scope of Preliminary Plan Focuses on 6 DHS Components -- CBP, TSA, Etc.
While DHS is comprised of 28 components and the Plan covers all regulations issued by DHS components, the focus is on the regulations of six operational components with regulatory responsibilities:
- U.S. Customs and Border Protection (CBP)
- U.S. Immigration and Customs Enforcement (ICE)
- Transportation Security Administration (TSA)
- U.S. Coast Guard
- Federal Emergency Management Agency (FEMA)
- U.S. Citizenship and Immigration Services (USCIS)
Review Process to Focus on “Significant” Regs at Least 5 Years Old
DHS’ Preliminary Plan, for the most part, covers existing “significant” regulations, i.e., regulations that are significant under the definition provided in Executive Order 128662.
However, DHS does not preclude the possibility of conducting retrospective reviews on “non-significant” regulations. Within the universe of existing regulations, DHS will generally focus on regulations that have had some time -- at least five years -- to be tested. DHS recognizes that there may be some regulations that warrant revision before five years, and where appropriate, DHS will consider those regulations for revision.
DHS Incorporated Public Input in Developing Plan, Identifying Rules for Review
To facilitate the development of its Preliminary Plan, DHS sought input from the public by April 13, 2011. In developing this Plan and identifying rules for retrospective review, DHS has incorporated the input it received from the public.
Regs Under Review or Candidates for Review Include In-Bond Process, Etc.
DHS’ Plan provides a list of rules and information collection reviews that are either currently under review or are candidates for future retrospective reviews. Trade-related items on those lists are as follows:
In-Progress Reviews
- CBP changes to the in-bond process - automate the in-bond process from paper-dependent to electronic and facilitate CBP’s and the trade’s ability to better track in-bond merchandise
- The Coast Guard’s regulations implementing the Maritime Transportation Security Act of 2002 (MTSA) -- clarify requirements in response to requests for interpretation and guidance.
- CBP evaluation of its ports of entry - assess whether facilities have the infrastructure to meet modern operational, safety, and technological demands for ports of entry.
- TSA aviation security infrastructure fee (ASIF) - update the fee distribution among air carriers as a result of market share changes since 2000.
Future Retrospective Review Candidates
- CBP international carrier bonds - CBP will review these regulatory procedures to determine whether they can streamline them.
- CBP internet publication of administrative seizure/forfeiture notices - CBP will consider whether there are ways to achieve cost effectiveness by using developments in technology.
DHS Plans to Retrospective Review Process to Function on 3-Year Cycle
Specific processes may vary by DHS component; however, DHS expects its overall retrospective review process to function generally in the following manner. On a three-year cycle, DHS and/or a DHS component will initiate the three-step process described above. Upon reviewing the feedback, and considering the other factors relevant to rule selection, DHS components will select rules for review. Following the selection of rules, DHS will prioritize the rules based on the factors relevant to rule prioritization. DHS components will report regularly on the progress of their retrospective reviews to the Department during their regulatory planning meetings with the Office of General Counsel’s Regulatory Affairs Law Division
(DHS and its components already engage in efforts - independent of EO 13563 - to facilitate the retrospective review of DHS regulations. DHS has recently completed several rulemakings and information collection reviews (ICRs) that already comply with the principles of EO 13563. In addition, DHS recently modified existing regulations in ways that further the principles of EO 13563. It has done so by removing outdated and redundant provisions, lessening regulatory burdens, and increasing regulatory clarity.)
1On January 18, 2011, the President issued EO 13563, "Improving Regulation and Regulatory Review," which requires retrospective review of significant rules. EO 13563 requires each Executive Branch agency to develop a preliminary plan to periodically review its existing regulations to determine whether any regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving its regulatory objectives. The plans were due to the Office of Management and Budget by May 18, 2011. (See ITT’s Online Archives or 01/19/11 news, 11011915, for BP summary.)
2According to the EO, “significant regulatory action" means any regulatory action that is likely to result in a rule that may: (1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.
(See ITT’s Online Archives or 03/14/11 news, 11031412, for BP summary of DHS seeking comments on its Plan.)