May 18, 2011
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Preliminary Plan for Retrospective Review of Existing Regulations Pursuant to Executive Order 13563

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Executive Order 13563 recognizes the importance of maintaining a consistent culture of retrospective 

review and analysis throughout the executive branch. As time passes and technologies, legal standards, 

and circumstances change, regulations may become outmoded, ineffective, insufficient, or excessively 

burdensome. Executive Order 13563 calls on each executive agency to prepare a preliminary plan under 

which it will periodically review its existing significant regulations and determine whether any 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modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more 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.

Pursuant to Executive Order 13563, the Department of Justice developed this preliminary plan for 

retrospective analysis in keeping with its resources, expertise, and regulatory priorities. The 

Department sought suggestions from regulated entities and the general public, and incorporated those 

suggestions throughout this plan. The Department also incorporated best practices from the extensive 

agency efforts already underway to review existing regulations, respond to petitions for rulemaking, 

modernize technologies, and engage the public. 

Going forward, the Department proposes to establish a Department-wide working group that will 

institutionalize a culture of retrospective review and collaborate with rulemaking components to select 

rules for review, solicit public comment, and recommend revisions as necessary. The working group 

plans to review one to three rules each year, and the components have already identified several 

candidate rules that the group will evaluate through the retrospective review process described in this 

plan. Once the working group reviews these initial candidates, the Department plans to report to the 

public on the outcome of its assessment. Through this process, the Department seeks to build upon its 

commitment to open government and to promote evidence-based decision-making with respect to 

regulations.

Executive Summary
Department of Justice | May 2011

Preliminary Plan for Retrospective Review of Existing Regulations Pursuant to Executive Order 13563

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CORE VALUES

 equal justice under the 

law,

 honesty and integrity,

 commitment to 

excellence, and

 respect for the worth and 

dignity of each human 

being.

Background

The mission of the Department of Justice is to enforce the law and defend the interests of the United 

States according to the law, to ensure public safety against threats foreign and domestic, to provide 

federal leadership in preventing and controlling crime, to seek just punishment for those guilty of 

unlawful behavior, and to ensure fair and impartial administration of justice for all Americans. In 

carrying out its mission, the Department is guided by four core values: (1) equal justice under the law, 

(2) honesty and integrity, (3) commitment to excellence, and (4) respect for the worth and dignity of 

each human being.

The Department of Justice is primarily a law-enforcement agency, not a regulatory agency; it carries out 

its principal investigative, prosecutorial, and other enforcement activities through means other than the 

regulatory process. Over the past ten years, the Department has promulgated only a handful of

“economically significant” or “major” rules (as defined by Executive Order 12866 and the Congressional 

Review Act, 5 U.S.C. §§ 801 et seq., respectively). Because of the limited scope of its rulemaking 

activities, the Department also has limited in-house staff and resources devoted to the regulatory 

process, and has on some occasions worked with outside contractors to prepare regulatory impact 

analyses of its economically significant or major rules.

During Fiscal Year 2010, the Department published three major rules, each representing the culmination 

of a multi-year effort by the Department: the Civil Rights Division’s final rules implementing Titles II and 

III of the Americans with Disabilities Act of 1990 (ADA), and 

the Drug Enforcement Administration’s (DEA) interim rule 

on electronic prescriptions for controlled substances. That 

number was atypically large for the Department; in the 

previous nine years, the Department had published a total 

of only one other major rule, pertaining to the process for 

ordering controlled substances.

That said, the Department does have significant 

responsibility for implementing a number of statutes, 

including the ADA, the Controlled Substances Act (CSA), the 

firearms and explosives laws, the Prison Rape Elimination 

Act (PREA), and provisions of the Immigration and 

Nationality Act (INA) relating to the removal of aliens.1 

 

1

In Calendar Year 2010, the Department submitted 21 rules that did not meet the “economically significant” threshold 

for review under Executive Order 12866. Three were Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) procedural 

rules regarding acquisition of firearms or explosives; four were Bureau of Prisons (BOP) rules governing inmates; four were Civil 

Rights Division advance notices of proposed rulemaking relating to the ADA; four were DEA rules pertaining to controlled 

substances; one was an Executive Office for Immigration Review (EOIR) rule pertaining to removal proceedings; one was a 

proposed rule revising and consolidating agency asset forfeiture regulations; three related to implementation of the Sex 

Offender Registration and Notification Act; one related to PREA; and one related to removing existing rules for certification of 

state capital counsel systems.
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Over a dozen DOJ components are involved in issuing new regulations, but the principal rulemaking 

components of the Department are: 

 The Drug Enforcement Administration (DEA), which enforces federal controlled substances laws 

and regulations. Through its diversion control program (DCP), the DEA regulates drug manufacturers, distributors, importers, exporters, hospitals, doctors, pharmacists, and others involved 

with controlled substances, and tracks transactions involving designated chemicals that have 

legitimate uses but are subject to diversion for illicit purposes. 

 The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which issues regulations 

implementing and enforcing federal laws relating to commerce in firearms and explosives and 

illegal trafficking in alcohol and tobacco.

 The Federal Bureau of Investigation (FBI), which issues regulations implementing the National 

Criminal History Instant Check System (NICS) for purchasers of firearms, rules governing the 

availability of criminal history records information maintained by the Criminal Justice 

Information Services (CJIS) Division, and rules relating to the Communications Assistance for Law 

Enforcement Act (CALEA). 

 The Bureau of Prisons (BOP), which issues regulations governing the care, custody, and 

treatment of federal inmates.

 The Civil Rights Division, which issues regulations relating to the enforcement of the ADA, the 

Voting Rights Act, and other civil rights laws, and coordinates non-discrimination requirements 

for federal programs and activities. 

 The Office of Justice Programs (OJP), and its constituent bureaus and offices, which issue

regulations relating to grant programs and criminal information records systems.

 The Executive Office for Immigration Review (EOIR), which promulgates regulations relating to 

certain proceedings before Immigration Judges (IJs) and the Board of Immigration Appeals (BIA). 

In addition, the Department’s Criminal, Civil, National Security, and Justice Management Divisions; the 

Office on Violence Against Women; the Executive Office for U.S. Trustees; the Professional 

Responsibility Advisory Office; and the Office of Information Policy issue regulations relating to the 

enforcement or implementation of laws within their authority. The U.S. Parole Commission issues 

regulations and standards relating to the granting of parole for federal offenders sentenced prior to 

1988, and the granting of parole and supervised release for D.C. offenders; the Commission is part of the 

Department for administrative purposes but is substantively independent of the Attorney General’s 

direction. 

The Department will include all of its significant regulations, and all of its rulemaking components, in its 

plan for retrospective review.2 At the same time, the preliminary plan focuses on those components 

 

2 Non-significant regulations are not subject to the retrospective review requirements under Executive Order 13563 

and therefore will not be part of the Department’s preliminary plan.
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with primary rulemaking responsibilities; the Department believes that it will be most productive, at 

least in the near term, to concentrate on the components that account for the greatest share of our 

regulations. In conducting its retrospective reviews, the Department will address not only existing 

regulations, but also pending proposed rules and interim rules that have not been finalized. 

In carrying out the retrospective analysis process, the Department and its regulatory components will be 

sensitive to competing demands for available time and resources arising from other regulatory 

initiatives and obligations. The Department will balance the need to conduct retrospective reviews with 

its other ongoing regulatory obligations and other law enforcement priorities.
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Public Participation in Developing a Plan

The Department is committed to developing a plan for retrospective review that takes account of the 

needs and views of regulated entities and the public as a whole. Accordingly, before preparing its draft 

plan, the Department solicited the views of the public on how it might best undertake a retrospective 

review process.

On March 1, 2011, the Department published a Request for Information in the Federal Register

(Reducing Regulatory Burden; Retrospective Review Under E.O. 13563, 76 Fed. Reg. 11163), with a 30-

day comment period running through March 31. <http://edocket.access.gpo.gov/2011/pdf/2011-

4513.pdf>. The notice solicited public comment on:

(1) how best to promote meaningful periodic review of existing rules and identify rules that might 

be modified, streamlined, expanded, or repealed;

(2) factors the agency should consider in selecting and prioritizing rules for review;

(3) any existing regulations that have become ineffective or been overtaken by technological or 

other change and should be modernized;

(4) any rules that can be revoked without impairing the Department’s statutory obligations and 

policy objectives;

(5) any rules that have not operated as well as expected; and

(6) how the Department can best obtain and consider accurate and objective information about 

the costs, burdens, and benefits of existing regulations. 

The Department received 10 public comments in response:

The Society for Industrial and Organizational Psychology and the Center for Corporate Equality (CCE)

submitted separate comments urging that the Uniform Guidelines on Employee Selection Procedures

and their corresponding Questions and Answers, which are among the regulations of the Equal 

Employment Opportunity Commission, codified at 29 C.F.R. part 1607, should be included among the 

initial regulations to be reviewed. 

The Leadership Conference on Civil and Human Rights urged that review of existing regulations should 

not unnecessarily burden agency resources, hinder new rulemaking efforts, delay the issuance of new 

regulations and guidance that would enable the Department to fulfill its mission more effectively, or 

detract from the Department’s important coordination responsibilities to ensure the uniform 

enforcement of our nation’s civil rights laws.

Similarly, the National Women’s Law Center urged that the Department’s plan for retrospective analysis 

of significant regulations should not unnecessarily burden agency resources or hinder new rulemaking 

efforts, and stated that the process must account for values such as equity, human dignity, fairness, and 

distributive impacts, and for the fact that clear and comprehensive regulations interpreting civil rights 

laws reduce costs and help businesses and other entities measure risk more accurately.
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The American Association of People with Disabilities urged the Department to proceed promptly to 

complete the rulemaking proceedings it initiated under the ADA on the Accessibility of Web Information 

and Services; Movie Captioning and Video Description; Accessibility of Next Generation 9-1-1; and 

Equipment and Furniture. The Department should also promptly issue proposed rulemaking to 

implement the ADA Amendments Act of 2008.

The Institute for Policy Integrity at NYU School of Law offered seven recommendations for developing 

procedural and substantive policies for conducting retrospective reviews:

• Retrospective reviews should avoid both deregulatory and pro regulatory biases.

• Agencies should use retrospective analysis to improve the quality of their prospective 

regulatory reviews.

• Agencies should adopt clear and publicly available guidelines for selecting rules to review.

• Retrospective analysis should include a thorough and balanced review of a rule’s impacts, 

such as costs and benefits, distributional consequences, and other empirical effects.

• Agencies should design rules ex ante so that they can be easily and effectively monitored 

and evaluated.

• Retrospective review should be transparent and actively seek public participation.

• Agencies should foster independent and unbiased retrospective analysis of existing rules by 

appointing a review team of personnel separate from the authors of the initial rule.

The Council on Governmental Relations urged that goals of the retrospective review should be to:

• Harmonize regulations and information systems between agencies and statutes and 

eliminate unnecessary duplication.

• Eliminate regulations that do not add value or enhance accountability.

• Provide targeted exemptions for research universities similar to protections provided for 

small entities under the Regulatory Flexibility Act (RFA).

• Ensure that regulations are meeting their goals in terms of performance, rather than simply 

in terms of process.

• Extend coverage provided under the Unfunded Mandates Reform Act (UMRA) to research

universities.

• Allow institutions to better account for new regulatory costs and charge these costs to 

federal awards.

• Simplify sub-recipient monitoring requirements.

• Reinforce the original intent of the Single Audit Act. 

• Prohibit voluntary committed cost sharing across the federal government and create a 

mandatory cost sharing exemption for research universities.

The Council also suggested the appointment of a high-level official within OMB’s Office of Regulatory 

Affairs (OIRA) to serve as a Federal Ombudsman, responsible for addressing university regulatory 

concerns and for seeking ways to increase regulatory efficiency.
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The American Immigration Lawyers Association (AILA) suggested several factors to consider in selecting 

and prioritizing rules and reporting requirements for review: the impact/benefit to the public; 

significant economic considerations; historical context; nexus to the underlying statute/congressional 

intent; and national interest consideration. AILA also identified a number of EOIR regulations that 

should be modified, streamlined, expanded or repealed, including:

• BIA and immigration court practices and procedures;

• Procedures for asylum and withholding of removal; and

• Procedures regarding removability of aliens and the apprehension and detention of aliens 

ordered removed.

Finally, the commenter suggested new areas for the promulgation of regulations, including ineffective 

assistance of counsel procedures and full discovery in removal proceedings. 

The Post-Deportation Human Rights Project and other groups urged that the Department eliminate 

regulatory provisions in 8 C.F.R. §§ 1003.2(d) and 1003.23(b)(1), which bar noncitizens from pursuing 

motions to reopen or motions to reconsider with the BIA or the Immigration Court after they have

departed or have been removed from the United States, consistent with a petition for rulemaking 

submitted to the Department on August 10, 2011. 

The American Immigration Council urged the Department to address the need for regulatory reform 

with respect to the departure bar for motions to reopen; ineffective assistance of counsel claims; 

procedures for cases involving noncitizens with mental disabilities; and the employment authorization 

asylum clock. 

The Department’s preliminary plan incorporates many of these suggestions. As urged by the Leadership 

Conference and the National Women’s Law Center, and as discussed above, the Department is mindful 

of the need to balance retrospective review efforts against other affirmative rulemaking and 

enforcement activities. As envisioned by Executive Order 13563, the preliminary plan establishes a 

rigorous retrospective review process consistent with resources and regulatory priorities. The 

recommendations of the Institute for Policy Integrity regarding transparency inform many provisions of 

the preliminary plan, as does the Council for Government Relations’ emphasis on avoiding unnecessary 

duplication. Specific regulations identified as candidates for retrospective review will be considered by 

the Department as part of its process going forward.
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Agency Efforts Already Underway 

Even before issuance of Executive Order 13563, the Department’s components have been reviewing 

current regulations in response to public input, updating and improving procedures, and engaging in 

outreach efforts with affected entities and individuals. In light of these important efforts, the 

Department is well-positioned to develop and implement a more systemic plan for retrospective review, 

and this plan can build on and expand upon practices that are already in place.

Retrospective Review of Existing Regulations

Several DOJ components have recently completed or are currently engaged in retrospective review of 

existing or proposed regulations. Earlier this year, for instance, EOIR undertook a retrospective review 

of its existing and proposed regulations and withdrew two pending proposed rules: “Suspension of 

Deportation and Cancellation of Removal for Certain Battered Spouses and Children; Motions to Reopen 

for Certain Battered Spouses and Children,” RIN 1125-AA35, and “Rules Governing Immigration 

Proceedings,” RIN 1125-AA53. EOIR determined that the proposed rules are no longer necessary as 

their intended purpose has been satisfied through other regulations, BIA precedent, and agency 

guidance documents.

Similarly, the Civil Rights Division recently conducted an extensive review of regulations implementing 

Titles II and III of the ADA, pertaining to state and local government services and public accommodations

and commercial facilities. In conjunction with the revision of those ADA regulations, the Civil Rights 

Division conducted a retrospective review under section 610 of the Regulatory Flexibility Act, 5 U.S.C. 

610, designed to identify changes that would reduce unnecessary burdens or respond to changed 

circumstances. The final Title II and Title III ADA regulations (published at 75 Fed. Reg. 56164 and 56236 

(Sept. 15, 2010)), include a number of regulatory changes that eliminate duplication or overlap in 

federal accessibility requirements and result in greater harmonization with model accessibility codes

promulgated by the International Code Council and the American National Standards Institute. See 75 

Fed. Reg. 56245-46. Also as a result of the review, the Civil Rights Division published four advance 

notices of proposed rulemaking in areas that were the subject of public comment but not addressed in 

the final rules. (RIN Nos. 1190-AA61, Accessibility of Web Information and Services; 1190-AA62, 

Accessibility of Next Generation 9-1-1; 1190-AA63, Movie Captioning and Video Description; and 1190-

AA64, Equipment and Furniture.) 

The Asset Forfeiture and Money Laundering Section (AFMLS) of the Criminal Division, in its role as Chair 

of the Asset Forfeiture Working Group, has led efforts to revise regulations relating to civil asset 

forfeiture procedures. Asset forfeiture regulations are currently found in disparate locations, in 28 

C.F.R. parts 8 (FBI) and 9 (Main Justice, including ATF); and 21 C.F.R. part 1316 (DEA). Moreover, many 

provisions were rendered obsolete by the Civil Asset Forfeiture Reform Act (CAFRA), which enacted 

comprehensive reforms that significantly affected forfeiture procedures. AFMLS has collaborated with 

FBI, DEA, ATF, U.S. Marshals Service, and the Justice Management Division’s Asset Forfeiture 

Management Staff to create a set of revised regulations to implement the CAFRA reforms and 

consolidate the seizure and forfeiture regulations of the DOJ investigative agencies. The revised 

regulations are expected to be published in final form later this year.
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ATF also has begun a rulemaking process that will lead to promulgation of a revised set of regulations 

governing the procedure and practice for disapproval of applications for explosives licenses or permits. 

This new set of regulations, 27 C.F.R. part 771, will replace the regulations previously codified at 27 

C.F.R. part 71 (2002), many of which are outmoded and needed to be revised (RIN 1140-AA40). 

The Office of Information Policy (OIP) recently completed a thorough review of regulations 

implementing the Freedom of Information Act, codified at 28 C.F.R. part 16, Subpart A. The Department 

published the revised regulations in the Federal Register on March 21, 2011, as a notice of proposed 

rulemaking with a thirty-day public comment period. And the Department’s Professional Responsibility 

Advisory Office (PRAO), is currently engaged in a retrospective review of 28 C.F.R. part 77, published as

an interim rule in the Federal Register on April 20, 1999. 

Responses to Petitions for Rulemaking

Department components also review and revise their existing regulations in response to petitions for 

rulemaking. When a Department component receives a petition, it carefully reviews the request, 

formulates a position, and decides whether to initiate a rulemaking proceeding. Following this internal 

review, the component provides a formal written response to the petitioner, either explaining that it will 

initiate a rulemaking and describing the ways in which the regulation will be modified, or identifying the 

reasons why the regulation will not be modified. Department components occasionally publish 

responses to petitions in the Federal Register, see, e.g., Notice of Denial of Petition, 66 Fed. Reg. 20,038 

(Apr. 18, 2001), and the Department will consider adopting a policy encouraging publication where 

appropriate, in the interest of greater transparency. 

EOIR has begun review of several of its regulations in response to petitions for rulemaking submitted by 

interested immigration groups. In light of intervening legislation, one such petition seeks the revocation 

of longstanding regulations that bar aliens from filing motions to reopen their removal proceedings, 

after they have been deported or been removed from the United States. In response to other petitions, 

EOIR is reviewing rules that bar immigration judges from reviewing the custody of “arriving aliens” who 

enter the United States at a port of entry and seek asylum based upon a credible fear of persecution or 

torture in their native country; exempt certain motions to reopen in asylum cases from current limits on 

the number of times such motions may be filed; and set standards for removal proceedings involving 

mentally incompetent respondents. Finally, EOIR is reviewing a petition requesting that it promulgate

new rules providing for the appointment of counsel for indigent respondents in certain removal 

proceedings. 

Additionally, ATF recently began review of a petition requesting, in part, amendments to the regulations 

relating to the making and transferring of a firearm under the National Firearms Act. After careful 

consideration of the petition, ATF will make a decision as to whether a rulemaking proceeding will be 

initiated. 

Technological Modernization

DEA recently has made several improvements to its information technology capabilities, in an effort to 

enhance its enforcement capabilities, reduce costs, streamline the regulatory compliance process for 

registrants, and keep the public informed. Underperforming contracts were terminated and a new 
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section was created within the DEA’s Diversion Control Program (DCP) to manage all DCP information 

technology projects, improving program efficiency and responsiveness for both registrants and the 

public. The new unit is continually modernizing information systems, and it is responsible for improving 

the efficiency of regulatory control systems and providing enhanced automated enforcement tools for 

use by the DCP.

One notable improvement has been modernization of the Controlled Substances Ordering System 

(CSOS), which now provides registrants with an electronic platform that reduces their costs while 

ensuring a more efficient and effective controlled substance ordering process. The DCP also streamlined 

the application process for all DEA registrants by implementing an online system for both new and 

renewal applications. The DCP is also working to improve the quality and accessibility of reporting 

systems that generate data important to its enforcement and control efforts, in part by providing for a 

more efficient means by which registrants may submit such reports. 

Public Engagement 

Many of the Department’s regulatory components regularly solicit and consider feedback from 

regulated entities and the public more generally. The Department will build on these public 

engagement practices in its retrospective review process, soliciting views directly from the public and 

also relying on components to bring forward suggestions derived from their own engagement efforts.

The FBI, for instance, receives extensive input from the Advisory Policy Board (APB), a federal advisory 

committee composed of 33 representatives from criminal justice agencies and national security agencies 

throughout the United States. The APB is responsible for reviewing certain policy, technical and 

operational issues related to the programs administered by the FBI’s Criminal Justice Information

Services (CJIS) Division. Those programs are used primarily by state and local law enforcement entities 

and state criminal history repositories, all represented through the APB. 

The Civil Rights Division engages actively with the communities affected by its regulations. It regularly 

coordinates and presents on interagency panels and at conferences for recipients of federal financial 

assistance and advocacy groups, providing training and conducting outreach to both broad and targeted 

audiences that have included mayors, local Chambers of Commerce, state and local governments, and 

businesses nationwide. Additionally, all members of the public – including recipients of federal financial 

assistance – have access to the Division’s Title VI, ADA, and Immigration Non-Discrimination Hotlines.

For instance, the ADA Information Line, a toll-free telephone line that operates 24 hours a day, allows 

the public to order ADA information and educational materials. The ADA Home Page (www.ada.gov) 

permits the public to use the Internet to gain access to the Department’s regulations, technical 

assistance materials, status reports, and settlement agreements. 

The Civil Rights Division also solicits public input early in the rulemaking process wherever possible, in 

part through issuance of advance notices of proposed rulemaking (ANPRM). For example, in advance of 

revisions to the Title II and Title III ADA implementing regulations, the Division published an ANPRM in 

September 2004 to solicit input from affected parties. In July 2010, the Division published four 

additional ANPRMs, and not only provided an opportunity for written comments but also held full-day 

public hearings in three different locations across the country. In addition to rulemaking, the Civil Rights 
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Division responds to questions and concerns of affected parties by issuing Frequently Asked Questions 

and Answers, tips and tools, and promising practices documents. 

DEA also interacts frequently with its regulated communities, hosting regularly scheduled conferences 

with regulated industries at which it provides training and solicits input. For instance, in January 2011, 

DEA held a public meeting to discuss the development of procedures for safe and effective disposal of 

controlled substances. The meeting allowed interested persons – the general public including ultimate 

users, pharmacies, law enforcement, reverse distributors, and other third parties – to express their 

views before implementation of any regulation. In addition, DEA participates in industry conferences 

and meetings on a regular basis, and maintains a website (www.DEAdiversion.usdoj.gov) that includes 

extensive historical and all current information concerning its Diversion Control Program. 

EOIR also meets regularly with affected parties, conducting a semi-annual meeting with the American 

Immigration Lawyers Association (AILA) to discuss a wide range of issues relating to agency practices, 

including rulemaking. EOIR’s most recent AILA meeting, held on April 7, 2011, included a discussion of 

the retrospective review process. 
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Going Forward

The Department plans to strengthen its process of retrospective review by creating a Department-wide 

working group that will collaborate with components while conducting thorough reviews of existing 

significant regulations. The working group will invite suggestions from components, select rules for 

review, solicit public comment, analyze the rules against defined metrics, and recommend revisions as 

necessary. This process will supplement ongoing regulatory initiatives that aim to promulgate new 

regulations or respond to statutory developments, changes in circumstances, or perceived needs. The 

Department’s goals are to institutionalize a culture of retrospective analysis, strive toward evidencebased regulation, and invite a regulatory process that is open, transparent, and accountable.

While the Department plans to implement robust processes for retrospective review, these processes 

must be balanced against prospective rulemaking obligations.3 Several public commenters opined that 

retrospective analysis should not unduly burden agency resources or hinder new rulemaking efforts. 

The Department plans to balance retrospective and prospective obligations by reviewing one to three 

rules each year and tailoring that review to both the resources and the expertise of the Department.

Institutionalizing a culture of retrospective analysis

The Department intends to strengthen its culture of retrospective analysis by involving both Department 

and individual component leadership in regulatory review and decision-making, thus expanding its 

capacity for retrospective analysis and creating a review process that is independent of the 

Department’s rulemaking offices.

First, the Department plans to create an internal working group to review existing regulations and 

recommend revisions. This working group will include staff from the Office of the Deputy Attorney 

General, the Office of the Associate Attorney General, the Office of Legal Policy, the Office of Legal 

Counsel, the Civil Rights Division, the Office of Justice Programs, and the Justice Management Division. 

This working group structure will allow the Department to centralize its internal expertise and resources, 

bringing together leadership offices with an overarching view of the Department’s regulatory efforts and 

components with expertise in statistics or experience in managing various issues related to the 

operation of the Department. Department-wide leadership of the group will also ensure sufficient 

independence from the components responsible for writing and implementing the Department’s 

regulations. In addition, the Deputy Attorney General, James Cole, and the Assistant Attorney General 

for the Office of Legal Policy, Christopher Schroeder, will ensure accountability by assuming 

 

3 For example, the Civil Rights Division will be devoting substantial resources to completing the four pending 

rulemaking actions begun last year to address the requirements of the ADA , as discussed above, in addition to undertaking a 

new rulemaking project to implement the ADA Amendments Act (RINs 1190-AA59, 1190-AA61, 1190-AA62, 1190-AA63, and 

1190-AA64). DEA is planning to devote substantial efforts to developing disposal regulations under the Secure and Responsible 

Drug Disposal Act, as well as finalizing the interim regulations published last year on electronic prescriptions for controlled 

substances. The Department will also be developing a final rule to promulgate national standards under the Prison Rape 

Elimination Act (PREA).
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responsibility for monitoring both the process and its results. The point of contact e-mail address is 

olpregs@usdoj.gov.

Second, the Department will continue to coordinate with regulatory components to ensure that senior 

officials, and not only the individuals responsible for writing and implementing regulations, are engaged 

in the retrospective review process. The Department’s regulatory components, and especially its 

principal rulemaking components, have been active participants in preparing this preliminary plan, 

submitting comprehensive information about their rulemaking activities and outreach efforts, offering 

detailed thoughts on a proposed framework for the Department’s retrospective review process, and 

suggesting candidate regulations for the Department’s retrospective analysis. As a result, the 

Department’s components understand the importance of an ongoing retrospective review process, and 

are committed to incorporating this process into their prospective development of regulations. 

The Department plans to build on this productive working relationship by instituting regular meetings of 

the working group and designated representatives of the Department’s regulatory components. Those 

meetings will provide an opportunity for components to share best practices regarding public outreach, 

transparency, and retrospective review of certain regulations – describing, for instance, how they have 

used public feedback to identify rules that might be candidates for the retrospective review process or 

new metrics for evaluating their own regulations. The working group also will use these meetings to 

update component representatives on its efforts, reinforcing the Department’s commitment and 

helping to create a “feedback loop” that will allow components to incorporate the working group’s 

perspective into their affirmative rulemaking activities.

Third, several of the larger regulatory components will continue to strengthen their capacity to assist in 

retrospective analyses. For example, DEA has realigned its regulatory drafting unit so that each 

regulation writer reports directly to the head of the Office of Diversion Control. EOIR has established 

the position of Chief Regulatory Counsel to provide advice to the General Counsel and OGC staff on 

regulatory matters, and contemplates this position supporting both the working group and the General 

Counsel in the periodic review of regulations. Similarly, ATF plans to support the efforts of the working 

group by providing input from its scientists and laboratory personnel as appropriate and necessary. 

Finally, the Department recognizes that it will be necessary to assess its capacity for retrospective 

review as this process goes forward. After observing the functioning of the retrospective review 

program for one year, the working group may consider whether staff changes are necessary, and 

whether additional resources or expertise are needed, from within the Department, from other 

agencies, or, resources permitting, through new staffing.

Developing a process for retrospective review

The Department has identified selection criteria for the rules its internal working group will review 

retrospectively. Candidate rules for review are those that:

• impose high costs or burdens on the public; 

• require outdated reporting practices, such as paper-based processes without an electronic 

alternative;
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• affect a large number of entities or have disproportionate distributional impacts on certain

entities, such as small businesses;

• could result in greater net benefits to the public if modified; 

• overlap, duplicate, or conflict with other federal rules, or, to the extent applicable, with 

State and local rules;

• have been in place for long periods of time so that updating may be appropriate; 

• have been overtaken by new technologies or unanticipated circumstances;

• could be replaced by other regulatory alternatives; or

• have been the subject of petitions for rulemaking.

The Department contemplates that its components—primarily those with significant rulemaking 

activities—and the public—through petitions for rulemaking or other similar submissions to the 

Department—will submit candidate rules that meet these criteria to the working group for 

consideration. After the working group has evaluated suggestions of candidate rules, it will prioritize 

the suggestions and select one to three rules per year to review.

After the working group selects a rule for retrospective review, the Department will seek public 

comment on the rule’s effectiveness, opportunities for harmonization or modernization, potential 

regulatory alternatives, actual costs and benefits (as opposed to the projected costs and benefits when 

the rule was promulgated), burdens of compliance, distributional equity to small businesses and other 

identified groups, and unintended effects. The Department encourages the public to comment on these 

metrics.

The Department’s internal working group will review the public comments and conduct a balanced 

review of the rule or regulation according to these same metrics. The working group will also seek input 

as needed from the component responsible for a particular regulation. After carefully considering both 

public comment and internal guidance, the working group will consider whether streamlining, repeal, 

amendment, or expansion is necessary and appropriate.

Once the working group formulates a recommendation, the group will forward that recommendation to 

the appropriate leadership offices for policy approval. With both the Deputy Attorney General’s Office 

and the Associate Attorney General’s Office represented on the working group, the goal is an 

expeditious process for consideration of recommendations developed pursuant to the working group 

and public input.

If the leadership offices approve the recommendation, the working group will ask the responsible 

component to draft a rulemaking document proposing the necessary revisions. The working group will 

establish timetables for actions by the responsible component that are appropriate in light of the nature 

and extent of the proposed revision. The component will then circulate the proposed rule and 

associated documents through the normal rulemaking clearance process to other interested and 

affected components of the Department for concurrence. Following component-level concurrence in 

rulemaking, the component will forward the rule to the appropriate leadership offices for policy 

approval and permission to submit to OIRA as necessary.
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As each individual review concludes, the Department will provide public reports regarding the outcomes 

of the process. This “report card” will demonstrate simply and clearly how the rule measured against 

the Department’s metrics for selecting candidate rules for review, and whether changes were made as a 

result of the Department’s retrospective review. This way, the public will have a standardized way to 

evaluate whether their ideas and recommendations are being appropriately considered, and whether 

the Department is acting upon the review metrics in an efficient, effective, and transparent manner. An 

example of this report card is attached as Appendix A to this preliminary plan; the public is encouraged 

to comment on this aspect of the Department’s plan.

The working group will repeat the above-described process annually beginning with a request for 

candidate rules from each component or the public. The working group will also collaborate with the 

Department’s primary rulemaking components to engage in a systemic review of their rules as time and 

resources permit. Once the Department has built a sufficient baseline against which to measure how 

effectively this system is working, it plans to implement training as necessary for staff developing and 

writing regulations, in order to ensure that ex post analysis informs ex ante formulation and 

development of rules.

Candidate Rules Already Identified for Retrospective Review

After consultation with the relevant components, the Department has identified multiple rules that it 

plans to evaluate during the next two years through the retrospective review process described above:

 21 C.F.R. §§ 1303, 1315: These regulations apply quotas to registered manufacturers of 

Schedule I and II controlled substances and certain List I chemicals. The quotas are intended to 

control the available quantities of the basic ingredients needed for the manufacture of certain 

substances, to reduce the risk of diversion while ensuring sufficient availability to satisfy the 

legitimate needs of the United States. Notably, these regulations have not been reviewed or 

revised since they were first implemented in the early 1970’s. DEA’s preliminary evaluation 

suggests that the existing process may be unnecessarily cumbersome for applicants because it 

requires paper-based applications and multiple contacts with DEA. The working group will 

review all of the quota and related regulations, including regulations governing the methods 

used to calculate quotas, the application process, and the relationship between the quota 

system and other methods of diversion control. Following this review, the working group will 

collaborate with DEA to explore strategies to modernize the quota system to achieve greater 

efficiency and effectiveness and reduce the burden on applicants.

 27 C.F.R. §§ 447.43, 479.111: The regulations in 27 C.F.R. 447 and 479 generally provide that 

firearms, ammunition, and defense articles may not be imported into the United States except 

pursuant to a permit. Section 447.43 provides that import permits are valid for one year from 

their issuance date. If shipment cannot be completed during the period of validity of the permit, 

another application must be submitted for a permit to cover the unshipped balance. Likewise, 

with respect to the importation of National Firearms Act (NFA) firearms, section 479.111 

provides that import permits are valid for one year from the date of approval. These rules have 

not been revised since 1992. Working with ATF, the working group will consider whether these 

regulations could be revised to achieve the same regulatory objective in a manner that is less 

burdensome for both industry and ATF. Specifically, sections 447.43 and 479.111 could be 
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amended to extend the term of import permits for firearms, ammunition, and defense articles 

from one year to two years. The additional time would allow importers sufficient time to 

complete the importation of the authorized commodity before their permits expired, and 

eliminate the need for importers to submit new and duplicative import applications. ATF 

believes that extending the term of import permits would result in substantial cost and time 

savings for both ATF and the industry, which includes many small businesses. ATF’s initial 

estimate is that such a change might reduce the number of permit applications submitted by 

importers each year from approximately 9,000 to as few as 4,500.

 8 C.F.R. parts 1103, 1211, 1212, 1215, 1216, 1235: These regulations address practices and 

procedures governing immigration into and removal from the United States. They affect 

individuals seeking immigration benefits and relief from removal; immigration practitioners 

representing individuals before the government; and the Departments of Homeland Security, 

State, and Health and Human Services. Many of these regulations have not been reviewed since 

the Homeland Security Act of 2002, Pub. L. 107-296, transferred certain immigration 

responsibilities to the Department of Homeland Security (DHS) and required a reorganization of 

title 8 of the C.F.R. in February 2003. After internal consideration and review, EOIR has 

identified numerous provisions that duplicate or should be better harmonized with DHS 

regulations. Those regulations primarily address the responsibilities of DHS, including appeals 

of DHS decisions (8 C.F.R. part 1103), documentary requirements for aliens (8 C.F.R. parts 1211 

and 1212), control of aliens departing from the United States (8 C.F.R. part 1215), procedures 

governing conditional permanent resident status (8 C.F.R. part 1216), and inspection of 

individuals applying for admission to the United States (8 C.F.R. part 1235). In order to provide 

greater clarity to the public regarding the distinct responsibilities of DHS and EOIR, the working 

group will collaborate with EOIR to eliminate unnecessary duplication. 

 8 C.F.R. part 1003: In order to ensure harmonization with DHS’s regulations and in response to 

the public comments received as a result of the Department’s Request for Information, 

published on March 1, 2011 (76 FR 11163), the working group will review the provisions of 8 

C.F.R. part 1003 addressing motions to reopen, motions to reconsider, venue, and immigration 

court practices and procedures. The working group will work with EOIR to remove outdated 

procedures and references in these regulations and will collaborate with EOIR to solicit public 

comment on these regulations. Throughout this process, the working group will also consider 

substantive revisions as appropriate.

The Department fully expects that the retrospective review process will be fruitful in these identified 

instances, leading to recommendations that allow the Department to fulfill its regulatory mission in 

more effective and less burdensome ways.

Maintaining the retrospective review process over time

Once the working group completes its retrospective review of the rules discussed above, the group will 

solicit candidate rules from the rulemaking components annually. The group also will consider 

suggestions from the public on an ongoing basis. As an initial matter, the Department will solicit 

candidate rules from the public when it posts this plan for comment. The working group also will renew 
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that public solicitation periodically, and will consider what means of public solicitation – Federal Register 

notice, website postings, etc. – is most effective in encouraging active public participation.

For rules subject to periodic reviews under the Regulatory Flexibility Act, 5 U.S.C. § 610, the group will 

coordinate scheduling with the components so that the two reviews can be conducted simultaneously. 

In all other instances, the working group will prioritize candidate rules using the metrics identified in 

Part V.B and Executive Order 13563. Over time, the Department’s working group intends to coordinate 

with all regulatory components to develop a periodic review schedule that will be frequent enough to 

accomplish the intended goals of the Executive Order. 

In planning for retrospective analysis in future years, the working group and the individual regulatory 

components will balance the plans for retrospective analysis so that they will not overwhelm (or, 

alternatively, be overwhelmed by) the needs of the Department’s overarching agency missions. 

Transparency, Participation and Collaboration

The Department views the instant effort as a part of building a culture of openness and a way to 

promote informed decision-making. In this regard, the three pillars of Open Government –

transparency, participation, and collaboration – are equally applicable to the Department’s preliminary 

plan for retrospective analyses of rules. 

Transparency: The Department intends to publish its preliminary plan in the Federal Register

shortly after it is submitted to OMB on May 18, 2011. To facilitate public

comment, the Department also will post the preliminary plan and provide an

opportunity for comment on its Open Government website at

<http://www.justice.gov/open>. After receiving public input, the Department 

will revise its preliminary plan in ways that are responsive to the public views 

received. 

Once finalized, the Department will make its plan available to the public, and 

post the final version on its Open Government website. Over time, the 

Department also will post on this site the results of the retrospective reviews 

conducted pursuant to Executive Order 13563, including publicly available 

“report cards” on the success of individual reviews.

Participation: The Department is committed to public participation, both as a mechanism to 

select candidate rules for review and as a means to understand how effectively

regulations are working in practice. Accordingly, the Department intends to 

solicit public feedback through requesting comment on this preliminary plan, as 

well as additional candidate rules for review; encouraging petitions for 

rulemaking and other similar methods of notifying the Department of gaps in 

existing rules or areas where regulations are not achieving their intended 

effects; and seeking comment on the actual effects of particular rules. In

soliciting candidate rules, the Department will invite public comments that 

identify why particular rules should be prioritized for review under the 

standards established in Part V.B above.
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Collaboration: Interagency coordination and collaboration is a well-established and regular 

aspect of the Department’s current rulemaking activities. The Department 

intends to build on this practice, focusing on harmonization across agencies with 

similar jurisdictions and collaboration with affected industry and stakeholders.

For example, ATF will continue to coordinate regularly with other federal agencies that have similar 

jurisdiction or interests. One such example is ATF’s and the Occupational Safety and Health 

Administration’s coordination on the development and improvement of standards affecting the storage 

of explosives. Similar efforts are underway as ATF works with the Department of Homeland Security on 

the safe storage of certain chemicals, including explosives. These are just two examples of ATF’s 

extensive interagency efforts; it is also engaged with the Consumer Product Safety Commission, as well 

as other components within DOJ, to develop integrated plans to achieve consistent regulatory standards 

within its jurisdiction. 

DEA also coordinates extensively with the Food and Drug Administration (FDA) and other agencies at the 

Department of Health and Human Services (HHS) on a wide range of issues relating to DEA’s diversion 

control program for controlled substances and listed chemicals. In addition, DEA actively solicits input 

from interested individuals and groups. 

With respect to immigration-related regulations, the Department coordinates extensively with DHS. 

Going forward, the Department intends to institute bi-monthly coordination meetings with DHS officials 

on immigration matters, including issues arising during the retrospective review process. This increased 

communication and coordination will serve as a model for the Department where it has overlapping or 

particularly closely shared responsibility with another agency to achieve particular goals.

Finally, the Department also works closely with other agencies on civil rights matters. The Civil Rights 

Division is responsible for ensuring effective implementation of Title VI and other civil rights laws across 

federal programs, and in that capacity, provides assistance and oversight to federal agency civil rights 

offices and reviews agency reports on implementation of civil rights laws, in part to identify areas where 

greater inter-agency coordination is needed. Executive Order 12250 provides that federal regulations 

that effectuate Title VI (and other civil rights statutes, including Title IX of the Education Amendments of 

1972) must be approved by the Attorney General. 42 U.S.C. § 2000d-l; E.O 12250 at § 1-1.In addition, 

the Department is a member of the U.S. Access Board and participates as one of twelve federal 

members in the development of ADA accessibility guidelines and accessibility standards required by the 

Rehabilitation Act. The Department meets periodically with other federal agencies, including the 

Departments of Transportation, Health and Human Services and Education, to coordinate the 

implementation of disability nondiscrimination requirements, and provides guidance and training to 

other agencies on those subjects, as well. 
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APPENDIX A

Report Card for Retrospective Review

Rule Title and RIN: ________________________

Step 1: Selection Criteria Yes No Additional Information

High Costs or Burdens

Outdated Reporting Practices

Affects a Large Number of Entities

Causes Distributional Inequities

Potential for Greater Net Benefits

Overlaps, Duplicates, or Conflicts with Other 

Rules

In Effect for Extended Period 

Overtaken by New Technologies or 

Circumstances

Available Regulatory Alternatives 

Subject of Petition for Rulemaking

Step 2: Public Input

Ineffective in Achieving Stated Regulatory 

Goal

Opportunity for Harmonization or 

Modernization

Potential Regulatory Alternatives

Actual Costs and Benefits Different than 

Projected

Burdensome Compliance

Distributional Inequities

Unintended Effects

Outcome of Retrospective Review: 

_____________________________________________________________________________________

_____________________________________________________________________________________

_____________________________________________________________________________________

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