U.S. Department of Homeland Security

Final Plan for the 

Retrospective Review 

of Existing 

Regulations

August 22, 2011
DHS Final Plan for Retrospective Review

1

Table of Contents

I. Overview...........................................................................................................................................3

A. Executive Summary of the Plan & Compliance with Executive Order 13563 .................................3

B. Recent Accomplishments..................................................................................................................4

C. Quantifiable Benefits........................................................................................................................5

II. Scope of the Plan ..............................................................................................................................9

A. DHS Components Covered By the Plan ...........................................................................................9

B. Documents Covered by the Plan.....................................................................................................10

III. Public Participation.........................................................................................................................11

A. Before the Release of the DHS Preliminary Plan ...........................................................................11

B. Summary of Public Comments to the March 2011 DHS Notice ....................................................11

C. Release of the DHS Preliminary Plan .............................................................................................16

D. Summary of Public Comments to the DHS Preliminary Plan ........................................................17

IV. Current DHS Efforts Already Underway for Retrospective Review of Regulations......................28

A. Overview.........................................................................................................................................28

B. Existing Formal Reviews................................................................................................................29

C. Existing Informal Reviews..............................................................................................................30

V. Elements of the Plan/Compliance with Executive Order 13563.....................................................33

A. DHS Officials Responsible for Retrospective Review ...................................................................33

B. DHS Approach to Retrospective Review........................................................................................34

C. Rule Selection, Prioritization, & Efficacy.......................................................................................36

D. Process for Retrospective Review...................................................................................................43

E. Candidate Regulations for Review .................................................................................................44

F. Culture of Retrospective Analysis ..................................................................................................45

G. Independence of the Retrospective Review Team..........................................................................45

H. Actions to Strengthen Internal Review Expertise ...........................................................................47

I. Coordination with other Federal Agencies .....................................................................................47

VI. Elements of Retrospective Cost-Benefit Analysis..........................................................................48

A. Resource Considerations for the Cost-Benefit Analysis.................................................................48

B. Factors to Consider when Conducting Retrospective Cost-Benefit Analyses................................48

C. Preliminary Expected Scope of Cost-Benefit Analyses Based on Public Comments.....................50

D. Steps Taken to Ensure DHS has Data to Conduct a Robust Retrospective Analysis .....................51
DHS Final Plan for Retrospective Review

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Appendix A: Recently Published Regulations & ICRs...............................................................................53

Appendix B: In-Progress Reviews of Regulations & ICRs........................................................................57

Appendix C: Long-Term Retrospective Review Candidates......................................................................64
DHS Final Plan for Retrospective Review

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U.S. DEPARTMENT OF HOMELAND SECURITY 

Final Plan for the Retrospective Review of Existing Regulations

August 22, 2011

I. Overview

A. Executive Summary of the Plan & Compliance with Executive Order 13563

Executive Order 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. Before a rule has been promulgated and 

implemented, it can be difficult to be certain of its consequences, including its 

costs and benefits. Retrospective review can assist in evaluating the 

consequences and efficacy of agency regulations.

In May 2011, the U.S. Department of Homeland Security (DHS or Department) 

released its Preliminary Plan for Retrospective Review of Existing Regulations 

(Preliminary Plan). The Office of Management and Budget (OMB) subsequently 

provided guidance to agencies for transforming their preliminary plans into final 

plans.1 Pursuant to the OMB guidance, this document represents DHS‘s Final 

Plan for the Retrospective Review of Existing Regulations (Plan or Final Plan). 

The DHS Final Plan is designed to create a process for identifying regulations that 

may be obsolete, unnecessary, unjustified, counterproductive, or excessively 

burdensome. 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.

This plan describes a number of initiatives that promise significant burden 

reductions. Appendix B to this Final Plan lists thirteen regulations that are 

currently under review. For example, DHS is finalizing a U.S. Customs and 

Border Protection (CBP) rule, ―Establishment of Global Entry Program,” which

will establish an international ―trusted traveler‖ program. The program will save 

air travelers valuable time, because CBP will be able to expedite clearance for 

individuals who enroll in this voluntary program. Over the past year (i.e., July 

2010 to June 2011), enrollees in a pilot program used Global Entry kiosks 

nationwide 784,250 times for an estimated time savings of almost 100,000 hours, 

 

1

See Memorandum for Heads of Executive Departments and Agencies from Cass R. Sunstein, Administrator, Office 

of Information and Regulatory Affairs, ―Final Plans for Retrospective Analysis of Existing Rules‖ (June 14, 2011).
DHS Final Plan for Retrospective Review

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worth $2.8 million. As the number of enrollees increase, the estimated time saved 

by international air travelers will also increase. 

In addition, the Coast Guard is revising its regulations under the Maritime 

Transportation Security Act of 2002 (MTSA). Since the promulgation of the 

MTSA regulations, the Coast Guard has granted exemptions from MTSA 

provisions on an ad hoc basis. The Coast Guard has often granted these 

exemptions after facility operators submitted individual waiver requests to the 

Coast Guard, and the Coast Guard either approved or disapproved the individual 

waiver requests. Based on lessons learned, the Coast Guard is considering 

formalizing these exemptions. Through these revisions, the Coast Guard would 

formalize several categories of exemptions within the MTSA regulations; this, in 

turn, would reduce the burden associated with the current ad hoc waiver process. 

Based on this change, the Coast Guard estimates that it will no longer receive, and 

thus no longer have to process, approximately 50 individual waiver requests a 

year. Based on a reduction of 50 waivers a year, the estimated annual cost 

savings is be $125,000 to industry and the Coast Guard.

Executive Order 13563 calls not for a single exercise, but for ―periodic review of 

existing significant regulations,‖ with close reference to empirical evidence. It 

explicitly states that ―retrospective analyses, including supporting data, should be 

released online wherever possible.‖ Consistent with the commitment to periodic 

review and to public participation, DHS will continue to assess its existing 

significant regulations in accordance with the requirements of Executive Order 

13563. The Department welcomes public suggestions about appropriate reforms. 

If, at any time, members of the public identify possible reforms to streamline 

requirements and to reduce existing burdens, the Department will give those 

suggestions careful consideration.

B. Recent Accomplishments

In the DHS Preliminary Plan, we highlighted several recently-issued rulemakings 

and information collection reviews (ICRs) that comply with, and further, the 

principles of Executive Order 13563. We highlight these rules and ICRs below; 

we provide additional detail about these rules and ICRs in Appendix A to this 

Plan. In addition, in Appendices B and C, we provide lists of rules and ICRs that 

are either currently under review or are candidates for future retrospective 

reviews. 

To modify existing regulations in ways that further the principles of Executive 

Order 13563, DHS has removed outdated and redundant provisions, lessened 

regulatory burdens, and increased regulatory clarity. For example, by removing 

outdated provisions pertaining to its Land Border Carrier Initiative Program, U.S. 

Customs and Border Protection now relies on a more comprehensive voluntary 

industry partnership known as the Customs-Trade Partnership Against Terrorism 

(C-TPAT). In addition, U.S. Coast Guard (USCG or Coast Guard) recently 

updated standards in its regulation on inflatable personal flotation devices; the 
DHS Final Plan for Retrospective Review

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newer standards reflect more recent technological and safety developments. And 

U.S. Citizenship and Immigration Services (USCIS) finalized an interim final rule 

related to Form I-9 (―Employment Eligibility Verification‖), updating existing 

regulations to reflect current requirements and practices. 

USCIS has also made substantial progress on an ongoing initiative related to the 

H-1B process. In March 2011, USCIS published a proposed rule that would 

require employers seeking to petition for H-1B workers subject to numerical 

limitations to first file electronic registrations with USCIS during a designated 

registration period. If finalized, this rule would reduce a petitioner‘s 

administrative burdens and associated costs with preparing a completed H-1B 

petition. This action, if finalized, would also reduce paperwork burdens by an 

estimated 13,750 hours.

In two actions that preceded, but nevertheless promote, the retrospective review 

called for under Executive Order 13563, DHS revised two existing ICRs to make 

them significantly less burdensome on the public. Combined, the two revisions 

have reduced paperwork reporting burdens by over 3 million hours. DHS replaced 

the paper version of CBP‘s ―Non-immigrant Visa Waiver Arrival/Departure‖ 

form with an electronic system, thereby substantially reducing the burden for air

travelers arriving in the U.S. DHS also reduced the burden on U.S. and 

international aircraft operations by assuming responsibility for checking 

passengers against government watch lists through the Transportation Security 

Administration‘s (TSA) Secure Flight Program. These initiatives reflect DHS‘s 

ongoing culture of retrospective review.

C. Quantifiable Benefits

In refining the DHS approach to retrospective review and developing our Final 

Plan, we have continued to evaluate the public input we have received thus far, 

and we have identified additional regulatory changes that promote the principles 

of Executive Order 13563. These regulatory changes will reduce duplication of 

effort, streamline procedures, leverage existing resources, and use technologies –

all of which result in maximizing efficiencies, realizing costs savings, and 

reducing regulatory burdens.

In this section, we highlight regulatory revisions, some of which we had identified 

previously and some of which we have identified since issuance of our 

Preliminary Plan, but all of which we estimate will result in quantifiable benefits. 

In addition to a narrative discussion of each rule, we include a table that 

summarizes the savings of these regulatory actions. The below numbers are 

preliminary estimates of savings; we will further refine our estimates as the 

retrospective and rulemaking processes progress. 

CBP Rule: Internet Publication of Administrative Seizure/Forfeiture Notices
DHS Final Plan for Retrospective Review

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This regulatory change came about as a result of the President‘s SAVE Award 

(Securing Americans Value and Efficiency) initiative, an effort that seeks ideas 

from federal employees to make government more effective and efficient and 

ensure taxpayer dollars are spent wisely. The President selected this idea, which 

came from a CBP employee, as one of four finalists for the SAVE Award. This 

regulatory change will enable CBP to post web-based notifications of seized 

property pending forfeiture. This change is expected to save DHS approximately 

$1 million each year.

This change will reduce administrative costs and improve the effectiveness of 

CBP‘s notice procedures, because Internet publication will reach a broader range 

of the public and provide access to more parties who may have an interest in the 

seized merchandise. In addition to modifying its regulations, CBP plans to 

establish and implement a system for posting all notifications of seized property 

pending forfeiture online rather than in print media. Online posting, in lieu of 

advertising through print media, will reduce costs and increase public access to 

DHS notices of seized property pending forfeiture. CBP also plans to coordinate 

with the Department of Justice (DOJ) to leverage existing technology systems for 

the web-based posting of these notifications.

Note that, in our Preliminary Plan, we had listed this rule in Appendix C (i.e., 

long term projects). We have decided to accelerate implementation of this 

rulemaking effort and now list this regulatory change in Appendix B (i.e., in 

progress reviews of regulations). 

USCIS Final Rule: Transitional Worker Classification for the Commonwealth of 

the Northern Mariana Islands (CNMI)

This USCIS final rule, which will create a new, temporary, transitional worker 

classification (CW classification) for workers in the CNMI, will likely result in a 

meaningful cost savings. The transitional worker program will assist in providing 

for an orderly transition from the CNMI permit system to the U.S. federal 

immigration system. USCIS estimates that this rule will result in cost savings of 

$6.8 million through 2014. The savings are attributable to the fact that multiple 

beneficiaries will now be allowed to be included in a single petition; this contrasts 

to the CNMI permit system administered by the CNMI Department of Labor, 

which requires an application and fee for each employee. 

USCG Rule: Updates to Maritime Security Regulations

The Coast Guard regulations implementing the Maritime Transportation Security 

Act of 2002 provide security measures for vessel and port facility operations in 

U.S. ports. These regulations require owners or operators of vessels and port 

facilities to develop security plans based on security assessments and surveys, 

designate security officers, provide security-related training, require access 
DHS Final Plan for Retrospective Review

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control for vessels and facilities, and require compliance with Maritime Security 

Levels. 

Since the promulgation of the MTSA regulations, the Coast Guard has granted 

exemptions from MTSA provisions on an ad hoc basis. The Coast Guard has 

often granted these exemptions after facility operators submitted individual 

waiver requests to the Coast Guard, and the Coast Guard either approved or 

disapproved the individual waiver requests. Based on lessons learned, the Coast 

Guard is considering formalizing these exemptions. 

Through this rulemaking, the Coast Guard would formalize several categories of 

exemptions within the MTSA regulations; this, in turn, would reduce the burden 

associated with the current ad hoc waiver process. The proposed categories of 

formal exemptions would likely include: certain facilities that receive low-risk 

cargoes, certain facilities that may be designated by the Captain of the Port as a 

Public Access Facility, and a shipyard facility operating continuously under an 

approved DOD security plan. 

Based on this change, the Coast Guard estimates that it will no longer receive, and 

thus no longer have to process, approximately 50 individual waiver requests a 

year. Based on a reduction of 50 waivers a year, the estimated annual cost 

savings is $35,000 to industry and $90,000 to the Coast Guard. The potential 

total annual cost savings of this regulatory change would be $125,000.

CBP Final Rule: Establishment of Global Entry Program

CBP is in the process of finalizing a notice of proposed rulemaking (NPRM) that 

will establish an international ―trusted traveler‖ program called Global Entry. 

This voluntary program allows CBP to expedite clearance of pre-approved, lowrisk air travelers arriving in the United States. Under the final rule, enrollees in 

this voluntary program could save an average of 7.6 minutes of wait time per trip 

by using Global Entry kiosks rather than waiting in the regular immigration 

processing line. This time savings has an estimated value of $3.62 per trip. Over 

the past year (i.e., July 2010 to June 2011), enrollees used Global Entry kiosks 

nationwide 784,250 times for an estimated time savings of almost 100,000 hours, 

worth $2.8 million.

CBP Proposed Rule: Closing of the Port of Whitetail

CBP is developing an NPRM that will propose to close the port of entry in 

Whitetail, Montana. The proposed change is part of CBP‘s continuing program to 

more efficiently utilize its personnel, facilities, and resources, and to provide 

better service to carriers, importers, and the public. Whitetail is one of the least 

trafficked ports, and the facility does not have the infrastructure to meet modern 

operational, safety, and technological demands for ports of entry. Major 

renovations would be required for CBP to continue operations at Whitetail, and 
DHS Final Plan for Retrospective Review

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CBP estimates that the needed renovations would cost approximately $8 million. 

Due to the closing of the adjacent Canadian port and the limited use of the 

Whitetail port, CBP believes that it would be inefficient to renovate the Whitetail 

facility. CBP estimates that the net benefit (estimated benefit less estimated cost) 

of the crossing closure would be about $8.2 million the first year and $396,000 

each year thereafter. 

ICE Rule: Revisions to the Student and Exchange Visitor Information System 

(SEVIS) Regulations

Immigration and Customs Enforcement‘s (ICE) SEVIS came online in summer 

2002. ICE is working with the Department of State to implement the deployment 

of SEVIS II, the next generation of the system. SEVIS II will allow for the 

creation of customer accounts and the migration of school and sponsor records; it 

will also create full operating capacity. The new system will modernize the way 

that ICE interfaces with its regulated population. To implement these changes, it 

is likely that ICE will need to update the existing regulatory provisions that 

govern SEVIS and govern compliance with SEVIS requirements. 

ICE estimates that many of the changes that are likely to result from SEVIS II 

will increase the overall usability of the system. For example, ICE estimates that 

the system will allow for streamlined data entry and recordkeeping. These 

changes will likely result in improvements for students, Designated School 

Officials (DSOs), and government users. ICE estimates that the total annual 

burden reduction of this rule will be approximately 11,000 hours, and the total 

annual savings of this rule will be approximately $220,110.

TSA Rule: Revision to the Alien Flight Student Program (AFSP) Regulations

The Transportation Security Administration (TSA) is working on a rulemaking 

that would revise provisions related to the AFSP. TSA regulations require aliens 

seeking to train at Federal Aviation Administration-regulated flight schools to 

complete an application and undergo a ―security threat assessment‖ (STA) prior 

to beginning flight training. There are four categories under which students 

currently fall; the nature of the STA depends on the student‘s category. TSA is 

considering changes to the AFSP that would improve the equity among fee 

payers. In addition, TSA is considering changes that would enable the 

implementation of new technologies to support vetting; specifically TSA is 

undertaking an information technology infrastructure modernization that will 

enable many process improvements. The streamlining of procedures is expected 

to result in savings to the AFSP students. Instead of paying approximately$300 

for an STA for each course of training (many students take multiple courses of 

training in a five-year period), TSA estimates the students would pay 

approximately $130 for an STA that would be valid for five years. TSA estimates 

that the total savings to the alien flight students, over a five-year period, will be 

$18,107 at a 7% discount rate. 
DHS Final Plan for Retrospective Review

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In the following chart, we have listed the above rules and our estimate as to their 

quantifiable benefits. 

Table 1: Estimated Quantifiable Benefits

Component Rule Quantified Benefits

USCIS

Commonwealth of the Northern 

Mariana Islands Transitional 

Worker Classification

The rule will likely result in savings of 

$6.8 million over the baseline through 2014.

USCG Update to Maritime 

Security Regulations

The formal exemptions in this rulemaking will

provide an estimated annual cost savings of 

$125,000.

CBP

Internet Publication of 

Administrative 

Seizure/Forfeiture Notices

The estimated net benefit will be 

approximately $1 million each year.

CBP Establishment of 

Global Entry Program

Over the past year (July 2010 to June 2011), 

enrollees used Global Entry kiosks nationwide 

784,250 times for an estimated time savings of 

almost 100,000 hours, worth $2.8 million.

CBP Closing of White Tail Crossing 

in Montana

The estimated net benefit of the crossing 

closure will be about $8.2 million the first year 

and $396,000 each year thereafter.

ICE

Revisions to the 

Student and Exchange Visitor 

Information System Regulations 

The estimated total annual savings of this rule 

will be $220,110, and the estimated total 

annual burden reduction will be approximately 

11,000 hours.

TSA

Revision to the Alien Flight 

Student Program

Regulations

The estimated total savings, over a five-year 

period, for alien flight students is $18,107 at a 

seven percent discount rate.

II. Scope of the Plan

A. DHS Components Covered By the Plan
DHS Final Plan for Retrospective Review

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DHS‘s mission is to ensure a homeland that is safe, secure, and resilient against 

terrorism and other hazards. Our mission gives us five main areas of 

responsibility: (1) to prevent terrorism and enhance security; (2) to secure and 

manage our borders; (3) to enforce and administer our immigration laws; (4) to 

safeguard and secure cyberspace; and (5) to ensure resilience to disasters. 

DHS carries out its mission through the Office of the Secretary and 28 

components. Although this Plan covers all regulations issued by DHS 

components, the focus is on the regulations of six operational components with 

regulatory responsibilities: 

U.S. Citizenship and Immigration Services (USCIS)

U.S. Coast Guard (USCG or Coast Guard)

U.S. Customs and Border Protection (CBP)

Federal Emergency Management Agency (FEMA)

U.S. Immigration and Customs Enforcement (ICE)

Transportation Security Administration (TSA)

B. Documents Covered by the Plan

DHS‘s Plan, for the most part, covers existing ―significant‖ regulations, i.e., 

regulations that are significant under the definition provided in Executive Order 

12866. DHS does not, however, preclude the possibility of conducting 

retrospective reviews of ―non-significant‖ regulations, and in fact, the attached 

Appendices (listing regulatory candidates for DHS retrospective review) include 

several ―non-significant‖ regulations. DHS will consider all types of regulations, 

including interim final rules (IFRs), for retrospective review. 

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.) 

Established in 2003, DHS is a relatively new agency, and some of our regulations, 

especially those in the security arena, have only recently been promulgated. It is 

important that these regulations receive the opportunity to be fully implemented

and tested. Moreover, allowing that implementation time will ensure that we have 

adequate information and data when it comes time to assess the effectiveness of 

these regulations.
DHS Final Plan for Retrospective Review

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To the extent possible, DHS will consider expanding its Plan to cover 

―significant‖ guidance documents, i.e., guidance documents that are significant 

under the definition in OMB‘s Final Bulletin for Good Guidance Practices.

III. Public Participation

A. Before the Release of the DHS Preliminary Plan

To facilitate the development of our Preliminary Plan, DHS sought input from the 

public through multiple means, including the publication of a Federal Register

notice and the use of an online tool that facilitates interactive dialogue among 

members of the public. 

On March 14, 2011, DHS published a Notice and Request for Comment 

(―Reducing Regulatory Burden; Retrospective Review Under Executive Order 

13563‖) in the Federal Register (76 FR 13526). The notice can be found at 

http://edocket.access.gpo.gov/2011/pdf/2011-5829.pdf. DHS solicited public 

input on two matters: (1) how DHS should structure its retrospective analysis 

review and (2) which DHS rules would benefit from a retrospective review. The 

public comment period ended on April 13, 2011. All public comments are 

available for viewing at www.regulations.gov. To access the comments, please 

conduct a search for Docket No. DHS-2011-0015.

In addition, on March 14, 2011, DHS launched an IdeaScale webpage to facilitate 

interactive dialogue among members of the public and stakeholders. IdeaScale is 

a web-based platform that allows users to actively share information and expertise 

in a collaborative manner. Through IdeaScale, individuals submitted ideas, 

commented on each others‘ ideas, and voted on each others‘ ideas. This social 

media tool provided an additional means for DHS to reach out to the public, and 

more importantly, to foster dialogue.

The IdeaScale dialogue ―closed‖ on April 13, 2011; however, the ―dialogue‖ 

remains viewable at http://dhsretrospectivereview.ideascale.com. To access the 

dialogue, please select ―All Ideas‖ under the ―Expired Categories‖ heading on the 

left side of the webpage. In addition, DHS has included a matrix of all ideas in 

the online docket for this initiative. To view the matrix, please visit 

www.regulations.gov and conduct a search for DHS Docket No. DHS-2011-0015. 

B. Summary of Public Comments to the March 2011 DHS Notice

In developing its Preliminary Plan and identifying rules for retrospective review, 

DHS has incorporated the input we received from the public. We conducted a 

review and analysis of the public comments, which we summarize below. DHS 

continues to evaluate, review, and assess the public comments.
DHS Final Plan for Retrospective Review

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1. Introduction

Our March 14th Federal Register notice provided commenters with a 

nonexhaustive list of questions to help facilitate the formulation of ideas.

In the notice, we asked commenters to identify, with specificity, the 

regulation at issue and to explain why DHS should modify, streamline, 

expand, or repeal that regulation.

The public submitted comments to DHS through the Federal eRulemaking 

Portal (regulations.gov), email, and IdeaScale. A variety of entities, 

including individuals, associations, and businesses, provided comments in 

response to the DHS notice. As of Monday, May 9, 2011, DHS had 

received approximately 35 comments via mail and email and no comments 

through regulations.gov. We posted all comments, including a matrix of 

ideas and comments from IdeaScale, on regulations.gov.

The IdeaScale page for DHS retrospective review attracted 178 users. 

Those users posted a total of 98 ideas; in response to those ideas, users 

submitted 76 comments and 174 votes. The three most popular ideas (i.e., 

the ideas that received the most votes) on our IdeaScale webpage were:

(1) ―Change the current State Standard and Enhanced Mitigation Plan 

update requirement‖ from 3 years to every 5 years to be consistent 

with current Local Hazard Mitigation Plan update requirements, 

and to eliminate additional funding ―drain‖ on federal and state 

federal sources‖ (Received a total of 18 votes); 

(2) Encourage electronic record keeping by federal employees 

(Received a total of 7 votes); and 

(3) Streamline the security clearance process among Federal agencies 

(Received a total of 7 votes). 

We discuss the first comment in further detail below. We do not include 

any further discussion of the second or third most popular ideas, because 

they do not relate to DHS regulations.

2. Overview

The public comments spanned a wide range of subjects, the majority of 

which were outside the scope of retrospective analyses of existing 

regulations. Those comments beyond the scope did not propose 

suggestions to improve the efficiency of particular DHS regulations or 

DHS‘s process of promulgating regulations but rather challenged the 

Department‘s statutory interpretations and policy decisions regarding

particular regulations. Other comments suggested new interpretations of 
DHS Final Plan for Retrospective Review

13

existing regulations that would require legislative changes to implement. 

Some commenters suggested broad organizational ideas, such as 

reorganizing DHS, consolidating Department functions, or improving 

DHS databases, all of which fall outside the scope of retrospective 

regulatory review. Additionally, a few comments referenced regulations 

that are within the purview of other Federal agencies. DHS has forwarded 

those comments to the appropriate agencies.

Members of the public provided a few comments on how DHS should 

develop its Preliminary Plan. These comments, which among other things 

recommended that the process be open and transparent to the public and 

that DHS‘s process promote the goals of Executive Order 13563, were 

generally consistent with DHS‘s overall approach to retrospective review. 

The overwhelming majority of public comments provided input on 

regulatory candidates for retrospective review. Our preliminary review of 

the comments has yielded some useful information regarding specific

regulations that might benefit from retrospective review. In some cases, 

comments identified new regulations for retrospective review. In other 

cases, comments addressed issues for which DHS components are already 

conducting reviews. This feedback has helped guide our selection and 

prioritization of candidate rules for retrospective review in both the short 

term and long term. 

3. Breakdown of Comments, by Regulation Category

For purposes of this Plan, we grouped DHS regulations into four broad 

functional categories: (a) security, (b) maritime safety and environmental 

protection, (c) immigration and border management, and (d) emergency 

management and assistance. We discuss the public comments in the 

context of those categories. We discuss only three categories below, 

however, because DHS did not receive any substantive public comments 

related to maritime safety and environmental protection.

a. Security

DHS received a comment regarding application of MTSA to the Great 

Lakes area; the comment recommended the creation of exemptions from 

MTSA requirements for certain facilities and vessels. The Coast Guard 

has already initiated a rulemaking to address requests for interpretation 

and guidance in complying with subchapter H. The Coast Guard is 

working on a NPRM and will address this comment when considering all 

comments received in response to the NPRM. 

DHS also received a comment regarding TSA‘s AFSP rulemaking (49 

CFR Part 1552). The commenter requested that lawful permanent resident
DHS Final Plan for Retrospective Review

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aliens be exempt from ―security threat assessment‖ background checks in 

order to reduce redundancy. Prior to receiving this comment, TSA had 

formed a team—consisting of representatives from relevant program 

offices, vetting experts, economists, revenue staff, and attorneys—to 

conduct a review of TSA vetting. The statute that this rule implements 

applies for all aliens, and does not exclude lawful permanent aliens.2 

TSA, however, will consider whether there is an appropriate 

accommodation that could be made for lawful permanent residents as it 

develops its proposed rule on vetting.

DHS received a few comments related to the Chemical Facility AntiTerrorism Standards (CFATS). One comment highlighted how multiple 

Federal agencies have overlapping jurisdiction over the same critical 

facilities, such as Electricity Generating Plants, which are regulated by 

DHS, the Department of Transportation (DOT), and the Federal Energy 

Regulatory Commission (FERC). Another comment recommended that 

DHS reconsider the application of CFATS to research laboratories, 

because they do not store concentrated volumes of chemicals of interest. 

This comment suggested that DHS should secure these facilities with a 

separate set of standards, protocols, and procedures for assessing the 

vulnerabilities and improving the security of chemicals of interest in a 

research setting. Finally, one commenter recommended that DHS modify 

its CFATS regulation to exempt gasoline from the regulation. 

During the CFATS rulemaking in 2007, commenters raised similar issues, 

and DHS considered them in the final rule. Regarding the gasoline-related 

issues, DHS issued a Federal Register notice3in January 2010, seeking 

additional comment on several gasoline-related issues; comments received 

in response to that notice are currently under review. DHS is continuing 

to review these retrospective review-focused comments more closely to 

determine the appropriateness and scope of retrospective review of the 

CFATS regulation.

DHS received a comment suggesting that we reduce the burden associated 

with unclassified information protection regimes, such as Sensitive 

Security Information, Chemical Terrorism-Vulnerability Information, and 

Protected Critical Infrastructure Information. The Department plans to 

consider this comment in conjunction with administration efforts to 

implement Executive Order 13556, ―Controlled Unclassified 

Information.‖ 

b. Immigration and Border Management

 

2

49 U.S.C. § 44939. 

3

See DHS/National Protection and Programs Directorate (NPPD) Request for Comments, Chemical Facility AntiTerrorism Standards, 75 FR 2445 (Jan. 15, 2010).
DHS Final Plan for Retrospective Review

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Approximately half of the comments that DHS received related to the 

nation‘s immigration laws and policies. Many of the immigration-related 

comments were beyond the scope of regulatory efficiency and dealt with 

the status of individual immigration cases, sought relief under the current 

system, or requested clarification on immigration law. 

Other comments fell within areas where USCIS has already begun 

conducting reviews of its regulations. For example, DHS received 

comments recommending the need to remove the administrative 

denaturalization regulations, and USCIS has incorporated this suggestion 

into its larger, ongoing plan for its Immigration Benefits Business 

Transformation final rule. Another comment recommended that the 

regulations governing the administrative appellate jurisdiction in 

immigration matters be reformed. USCIS plans to consider these 

comments more closely during its current reviews.

DHS also received comments suggesting that certain areas of immigration

regulations should be modified, streamlined, expanded, or repealed. For 

example, DHS received comments suggesting revisions to various visa 

categories, such as employment-based categories (e.g., E, H, L, and O) 

and student categories (e.g., F, J, M, including optional practical training 

(OPT)), and traders and investors (i.e., E). The Department also received 

comments regarding certain naturalization provisions that commenters 

asserted were outdated or obsolete. Regarding employment-creation 

immigrant visa (EB) categories, DHS received comments requesting 

clarification on issues related to material changes for regional centers. 

DHS also received comments related to the processing of asylum 

applications that covered a range of issues such as employment 

authorization and membership in a particular social group. USCIS is 

reviewing these comments more closely and has preliminarily identified 

areas within its regulations to further evaluate for retrospective review.

One comment recommended ICE revise its regulations to provide that 

asylum seekers who have established credible fear should not be detained 

absent concerns about identity, flight risk, or security. ICE plans to 

review this comment further to determine whether the regulations can be 

modified. Another comment suggested that ICE regulations regarding 

SEVIS be updated to remove outdated non-SEVIS school procedures from 

the regulations, since, as of 2003, all schools should be enrolled with 

SEVIS. ICE is reviewing this comment more closely to determine the 

appropriateness and scope of retrospective review for SEVIS regulations. 

Regarding CBP regulations, DHS only received a few relevant comments. 

One comment suggested that CBP merge titles 8 (immigration) and 19 

(customs) of the Code of Federal Regulations (CFR) to eliminate 

redundant regulations and to have one set of regulations that covers 
DHS Final Plan for Retrospective Review

16

immigration and customs. CBP will continue to review its regulations so 

that CBP can, to the extent permissible by law and operational feasibility, 

improve consistency between titles 8 and 19. 

Another commenter suggested that CBP modify the documentation 

requirements for used vehicles in 19 CFR Part 192 to cover the situation in 

which a new vehicle, imported on a duty-paid basis and where title was 

not transferred to the ultimate purchaser, needs to be exported. CBP plans 

to research this comment further to determine whether the regulations can 

be modified to address this concern.

c. Emergency Management and Assistance

DHS received a comment (the top-voted comment mentioned above) 

recommending that DHS change the current FEMA State Standard and 

Enhanced Hazard Mitigation Plan update requirement from every three 

years to every five years so that it is consistent with current Local Hazard 

Mitigation Plan update requirements. Commenters asserted that five years 

would be an appropriate timeframe for state mitigation plan updates for 

both efficiency and resource-limitation reasons. FEMA plans to review 

these suggestions and determine whether possible changes to 44 CFR 

sections 201.3-201.5 are warranted.

Another commenter stressed the importance of implementing and 

maintaining an ongoing planning process as set forth in these mitigation 

plans regardless of whether the update cycle was three or five years, 

adding that states and tribes should not perform updates at the last minute.

This commenter suggested that DHS should reward those who show 

commitment and progress regarding their mitigation plans and processes 

to the extent they demonstrate a reduction in the need and costs for 

preparedness, response, and recovery and thus lead to fewer disaster 

declarations for American taxpayers. FEMA is reviewing this comment 

more closely to determine whether any regulatory changes may be 

warranted.

C. Release of the DHS Preliminary Plan

On May 26, 2011, through a blog posting on the DHS website, DHS announced 

the release of our DHS Preliminary Plan for Retrospective Review of Existing 

Regulations.4 On the same day, we also made our Preliminary Plan available on 

the DHS OpenGovernment website.5 Concurrent with DHS‘s release of its 

Preliminary Plan, OMB‘s Office of Information and Regulatory Affairs (OIRA) 

 

4 The posting is located in the archive for May 2011 blog entries. See http://blog.dhs.gov/2011_05_01_archive.html.

5 The DHS Preliminary Plan is available in the library on the DHS website. See

http://www.dhs.gov/xlibrary/assets/dhs-ogc-preliminary-plan-for-retrospective-review.pdf.
DHS Final Plan for Retrospective Review

17

posted DHS‘s Preliminary Plan, along with all other federal agency preliminary 

plans, on the White House website.6 

On June 6, 2011, DHS published a notice in the Federal Register, announcing the 

availability of, and requesting public comment on, the DHS Preliminary Plan. 

The notice can be found at http://69.175.53.6/register/2011/Jul/06/2011-

16865.pdf. The comment period remained open through June 25, 2011, which 

was thirty days from the release of the Preliminary Plan.

D. Summary of Public Comments to the DHS Preliminary Plan

The DHS Plan recognizes and promotes the importance of public input. DHS has 

solicited and incorporated public input to develop our Preliminary, and also Final, 

Plan. Robust public comment will continue to be a central tenet of the DHS

retrospective review process. Below, we discuss the public comments that we 

received in response to our release of the DHS Preliminary Plan. 

1. Overview

The public submitted comments through the Federal eRulemaking Portal 

(regulations.gov) and by email. A variety of entities, including individuals, 

associations, and businesses, provided comments in response to the DHS 

Preliminary Plan. The public comments covered a variety of subjects and 

included suggestions on how DHS can improve its Preliminary Plan. The 

comments also identified additional regulations that DHS should consider for 

retrospective review. Several commenters resubmitted suggestions or 

recommendations that they made in response to DHS‘s March 14, 2011 Federal 

Register notice.

Some of the comments were outside the scope of the retrospective review of 

existing DHS regulations. These comments did not provide feedback related to 

DHS‘s Preliminary Plan or propose suggestions for the improved efficacy of DHS 

regulations; rather, these comments discussed DHS‘s statutory interpretations and 

policy decisions regarding particular regulations. Because these comments are 

out of the scope of this initiative, we do not discuss them below.

As of June 25, 2011, DHS had received 15 submissions from seven commenters. 

We have made all comments available on regulations.gov. Below, we address the 

pertinent ideas from each commenter.

2. General Comments on DHS‘s Preliminary Plan

 

6

See http://www.whitehouse.gov/files/documents/2011-regulatory-actionplans/DepartmentofHomelandSecurityPreliminaryRegulatoryReformPlan.pdf.
DHS Final Plan for Retrospective Review

18

Two comment submissions provided several specific ideas on how DHS could 

further develop and refine its Preliminary Plan. Concerning the scope of DHS‘s 

Preliminary Plan, one commenter, the Airports Council International – North 

America (ACI-NA), suggested that DHS should extend its retrospective review 

process beyond rules to cover TSA Security Directives (SDs). 

The regulations providing for SDs originated with the Federal Aviation 

Administration (FAA) before TSA was created.7 These regulations, and the 

authority of the FAA in this regard, transferred to TSA in the Aviation and 

Transportation Security Act.

8

 The authority of TSA to issue SDs now appears in 

49 CFR 1542.303 for airport operators and in 49 CFR 1544.305 for aircraft 

operators. TSA uses this authority to respond to emerging threats that require 

rapid response. For instance, TSA used its SD authority immediately following 

the attempt to destroy an aircraft on Christmas Day in 2009 and in response to an

attempt to use Improvised Explosive Devices (IEDs) in cargo in 2010. 

Although DHS‘s Plan does not cover TSA SDs, DHS notes the efforts that are 

already underway to review TSA SDs. As the ACI-NA indicated in its comment, 

the industry began a process to review all SDs issued to airport operators. TSA 

actively participates in that process, the In-Depth Security Review (IDSR) 

Working Group, which was created in October 2009. 

The IDSR has undertaken a comprehensive review of all active airport operator 

SDs and airport security program (ASP) amendments to consider whether to 

modify, delete, and/or transfer from an SD to a security program amendment or a 

rulemaking. As a result of IDSR‘s recommendations, TSA has rescinded two 

ASP amendments; in addition, TSA has issued three ASP amendments using 

notice-and-comment procedures with the airport operators to move SD measures 

into airports‘ security programs with additional clarity and flexibility on how the 

security goal may be achieved. TSA will continue with this review process to 

gather additional input from the airport operators and make additional changes in 

SDs and airport security programs.

3. Comments related to the Three-Step Framework for Retrospective Review

DHS received various comments related to DHS‘s three-step framework for 

retrospective review – i.e., rule selection, prioritization, and efficacy.9 We discuss 

the comments, by step, below.

a. Rule Selection 

 

7

See Department of Transportation (DOT)/Federal Aviation Administration (FAA) Final Rule and Request for 

Comment, Security Directives and Information Circulars, 54 FR 28984 (July 10, 1989) (aircraft operators), and 

DOT/FAA Final Rule Airport Security, 66 FR 37274 (July 17, 2001) (airport operators). 

8

See Pub. L. 107-71 (Nov. 19, 2001), § 101 as codified at 49 U.S.C. § 114(d) and § 141. 

9

See section V.C. below.
DHS Final Plan for Retrospective Review

19

The first step of DHS‘s three-step framework is the selection of 

rulemakings for retrospective review. One commenter recommended that 

DHS should focus primarily on two criteria when selecting rules for 

retrospective review – ―changed circumstances‖ and ―availability of 

updated data on costs and benefits.‖

The commenter recommended that the ―changed circumstances‖ factor 

should go before all other factors. In the DHS Preliminary Plan, DHS 

included this factor as one of several factors that the Department would

consider when selecting rules for retrospective review. Changed 

circumstances encompasses the need for regulatory revision based on 

developments in technology, advances in science, changes in economic 

conditions, or other factors. The fact that DHS listed the ―changed 

circumstances‖ factor as the final item in the list of selection factors (in 

the Preliminary Plan) does not diminish its value in the selection process. 

DHS‘s intention was to consider all factors when selecting rules for 

retrospective review.

After consideration of this comment, however, DHS now believes that 

there is one rule selection factor that is of primary importance – public 

feedback. Given that public input is the central tenet for driving and 

focusing DHS retrospective review, we believe it is important to elevate 

public feedback to the primary rule selection factor that DHS will use in 

driving the retrospective review of its regulations. 

As a related matter, though, DHS notes that the rule selection factors are 

highly interrelated and are certainly not mutually exclusive. For example, 

the public could provide feedback indicating that changed circumstances 

(e.g., new technological developments) warrant a rule revision. DHS has 

revised the Plan to clarify that these factors are interrelated and that 

―public feedback‖ is the primary rule selection factor.

As noted above, one commenter recommended that DHS should focus 

primarily on ―changed circumstances‖ and ―availability of updated data on 

costs and benefits‖ when considering rules for retrospective review. 

Regarding the updated data on costs and benefits, the commenter 

suggested that DHS include a clear criterion for the ―availability of 

updated data on costs and benefits.‖ The commenter reasoned that new 

data on the costs and benefits of rules could raise the opportunity for 

retrospective review. 

DHS agrees that new information could raise the opportunity for 

retrospective review, but does not agree that it is necessary to add 

―availability of updated data on costs and benefits‖ as a separate rule 

selection factor. There are already many factors listed under the rule 

selection criteria (e.g., public feedback, feedback from the field, advisory 
DHS Final Plan for Retrospective Review

20

councils, reports of oversight entities) that allow DHS to consider new 

data on costs and benefits. In addition, there is already an 

―accident/incident data‖ factor which considers the ―need for regulatory 

change in response to...accident or incident data or statistics.‖ 

Another commenter recommended that DHS give more weight to public 

comments that offer specific information and data on why a rule is no 

longer efficient. The commenter believes that DHS should ―resist the 

urge‖ to lend any weight to public input simply because the commenter 

speaks strongly about a rule. DHS agrees. Simply because a commenter 

takes a strong position about a rulemaking does not automatically warrant 

DHS inclusion of that rule as a candidate for retrospective review. In 

addition, DHS agrees that the public input is most helpful when it provides 

specific data and information. As discussed in the March 2011 Federal 

Register notice and stated in this Plan, ―DHS will afford significantly 

greater weight to feedback that identifies...actionable data, or provides 

viable alternatives that meet statutory obligations and regulatory 

objectives.‖ DHS has edited the ―public feedback‖ factor in this Plan to 

emphasize the value and importance of actionable data, such as cost and 

benefit data, from the public.

Another commenter suggested that the DHS Plan include a process for 

industry and the government to work collaboratively to determine which 

security rules DHS should review retrospectively. DHS believes that its 

Plan already accounts for that sort of collaboration, as evidenced by the 

―advisory councils‖ and ―outreach to regulated entities‖ factors under the 

Plan‘s selection criteria. Under the ―advisory councils‖ factor, for 

example, DHS considers input and feedback from multiple advisory 

councils that advise DHS and its components. Similarly, under the 

―outreach to regulated entities‖ factor, DHS regularly and frequently 

solicits feedback from regulated entities on the impact and effects of 

existing regulations. 

DHS also received a comment recommending that the Department‘s 

retrospective review process be ongoing and that public input be routinely 

submitted, not solely in response to a published notice. DHS is open to 

public comment at all times. The issuance of a Federal Register notice, 

however, will serve as DHS‘s formal mechanism for soliciting public 

comments.10 As mentioned above, DHS‘s Plan focuses on the critical and 

essential role of public input in driving and focusing retrospective review. 

DHS has solicited public feedback through each stage of the development 

of this Plan and plans to continue using public feedback to inform the 

retrospective review of existing DHS regulations.

 

10 See Section V.D. below (explaining that DHS will initiate its three-step framework—selection, prioritization, and 

efficacy—for retrospective review, on a three-year cycle, by publication of a Federal Register notice).
DHS Final Plan for Retrospective Review

21

This commenter further suggested that the DHS Plan outline a process for 

seeking input from regulated parties and that DHS make use of that 

feedback before issuing proposed regulations. DHS believes that utilizing 

advance notices of proposed rulemaking (ANPRMs) offers a method to 

gain public input before proposing rules. In the past, DHS has issued 

ANPRMs to notify the public that DHS is considering an area for 

rulemaking and to solicit input, data, views, and arguments from the 

public on that particular matter. We believe that the Department‘s use of 

ANPRMs addresses this commenter‘s recommendation. We have added 

language to the Plan that underscores our interest in using ANPRMs, 

where feasible and appropriate, to seek the views of those who are likely 

to be affected. 

b. Rule Prioritization

The second step of DHS‘s three-step framework for retrospective review 

is the prioritization of the rulemakings that DHS has selected. One 

commenter suggested that DHS‘s Plan contained a slight deregulatory bias 

and recommended that retrospective review be open to any change that 

would enhance net regulatory benefits, even if that change included the 

expansion of a rule. In the Preliminary Plan, DHS did not intend to 

convey a deregulatory bias. DHS has clarified in this Plan that, in certain 

circumstances, retrospective review could lead to the expansion of a rule.

Another comment stated that DHS‘s first factor for rule prioritization is 

the potential to enhance net benefits, and while the other factors are useful, 

they should be secondary to the overarching goal of enhancing net 

benefits. DHS agrees with the commenter that the ―net benefits‖ criterion

is the most important rule prioritization factor. We have revised the Plan

accordingly, by indicating that ―net benefits‖ is the primary factor for rule 

prioritization. 

We note, however, that the secondary factors (e.g., ―ability to amend 

without statutory change‖ or ―resources‖) are also important and must be 

considered. For example, it might not be the best use of resources to 

expend time conducting a retrospective review of a rule that is statutorilymandated and unlikely to change without statutory amendments when it 

would have been possible to complete several retrospective reviews for 

regulations that DHS has the discretionary authority to implement. 

c. Rule Efficacy

The third step of DHS‘s three-step framework for retrospective review is 

to determine the efficacy of the regulation. For purposes of this Plan, we 

grouped DHS regulations into four broad functional categories (i.e., 

security, maritime safety and environmental protection, immigration and 
DHS Final Plan for Retrospective Review

22

border management, and emergency management and assistance) and 

identified factors specific to each category to assess efficacy.

One comment suggested that DHS should focus on the goal of enhancing 

net benefits when reassessing a rule, regardless of the rule‘s functional 

category under the DHS plan. DHS agrees with the commenter regarding 

the importance of net benefits, but as a practical matter, there are many 

factors (e.g., resources, priorities, statutory mandates, available expertise) 

that bear on the reassessment of a rule. For example, the expertise needed 

to conduct a retrospective analysis of an immigration rule is very different 

than the expertise needed to analyze a rule that was designed to prevent oil 

spills. Accordingly, DHS must consider all relevant factors and not limit 

itself only to net benefits.

DHS also received a comment suggesting that DHS consider whether 

coordinating its training efforts with other agencies and sharing other data 

on retrospective analyses might conserve agency resources and foster 

productive collaborations. In addition to coordinating with other agencies, 

a comment recommended that the DHS Plan include a process for 

coordination among DHS components. DHS values the collaborative 

process and plans to seek ways to coordinate training efforts and data with 

other agencies to possibly conserve agency resources. Regarding internal 

DHS coordination, as described in the Preliminary Plan, DHS has a wellestablished intra-departmental process for reviewing regulations. This 

process provides an opportunity for DHS components to coordinate on 

overlapping rulemaking subject matters and issues.

Another comment suggested that the DHS Plan incorporate, as a core 

element throughout the Plan, collaboration with the Intelligence 

Community regarding the determination of when a regulation is needed 

due to a continued security threat. The comment indicated that DHS 

should use this process to inform all aspects of the Plan, not solely the 

cost-benefit analysis. DHS agrees with this comment. DHS continuously 

assesses and reassesses the need to respond to new and different security 

threats. DHS‘s discussion of current intelligence in the Preliminary Plan 

was not intended to imply that we only consider current intelligence once 

a rule is actually selected for retrospective review. Accordingly, we have 

added clarifying language to the Plan.

One comment recommended that DHS incorporate retrospective review 

and data collection during the early rulemaking stages and design rules ex 

ante to facilitate later reviews. DHS agrees with the commenter. As 

noted in the Preliminary Plan and restated in this Final Plan, ―DHS 

regulatory components will build in retrospective review at the earliest 

stages of regulatory development.‖ 
DHS Final Plan for Retrospective Review

23

One comment suggested that the 19 day time period to comment on the 

Preliminary Plan was too short and recommended that DHS provide at 

least a thirty day comment period. As mentioned above, on May 26, 2011, 

the White House posted the DHS Preliminary Plan, along with the plans of 

other federal agencies, on the White House website. On the same day, 

DHS posted an announcement about the Preliminary Plan on the DHS 

Blog and made the Preliminary Plan available on the DHS Open 

Government website. DHS followed up with the publication of a Federal 

Register notice on June 6, 2011, again announcing the availability of the 

DHS Preliminary Plan and requesting public comment. The comment 

period remained open through June 25, 2011, which was 30 days from the 

release of the Preliminary Plan on May 26, 2011.

d. Cost-Benefit Analysis

One commenter suggested that DHS edit the factors that DHS considers 

when conducting retrospective cost-benefit analysis. The commenter 

noted the ―cost-benefit or cost-effectiveness‖ factor focused on whether 

changed circumstances have affected costs, but did not mention a 

reassessment of the benefits. The commenter stated that changes in 

benefits should have also been considered. Regarding the ―alternative 

regulatory approaches‖ factor, the commenter stated that the selected 

alterative should maximize net benefits, and for the ―unintended effects‖ 

factor, DHS should be clear that both positive and negative effects should 

be considered. DHS agrees with all of these comments and has updated 

the Plan accordingly. 

To evaluate the accuracy of prospective cost-benefit analyses, a comment 

suggested that DHS could consider studying whether any systematic 

biases in under- or over-estimating either costs or benefits existed by 

randomly selecting a sample of rules and comparing the ex ante and ex 

post estimates. While DHS agrees that such study could provide some 

information, DHS does not plan to ―randomly‖ conduct retrospective costbenefit analyses. DHS is focusing its resources on retrospectively 

analyzing rules that could reasonably be expected to yield net benefits if 

they were streamlined, modified, or removed. 

DHS also received a comment recommending that DHS consider 

conducting a broader analysis of the distributional effects of a rule other 

than updating the costs to small businesses. The commenter stated that 

DHS should consider analyzing how the benefits and burdens fall across 

all affected subpopulations. We agree that DHS should consider 

distributional effects. According to OMB Circular A-4, ―[t]he term 

 ̳distributional effect‘ refers to the impact of a regulatory action across the 

population and economy, divided up in various ways (e.g., income groups, 

race, sex, industrial sector, geography).‖ 
DHS Final Plan for Retrospective Review

24

To clarify our approach on distributional effects, DHS plans to consider 

the impacts on all of the types of small entities considered under the 

Regulatory Flexibility Act, including small businesses, small 

organizations, and small governmental jurisdictions. In addition, if, 

during the course of conducting a retrospective analysis, DHS believes 

that a subpopulation, such as lower income individuals, is bearing a 

disproportionate cost or receiving a disproportionate benefit of the rule, 

then DHS would consider and discuss these distributional effects. DHS 

has revised the Plan to incorporate this clarification. 

One commenter responded to language in the Preliminary Plan, which 

explained that no commenters had provided input on the use of costbenefit analysis for the category of maritime safety and environmental 

protection regulations. This commenter highlighted the value of costbenefit analysis in the context of maritime safety and environmental 

protection regulations. The commenter suggested that DHS consider 

consulting with other agencies, such as the Environmental Protection 

Agency (EPA), that have experience with cost-benefit analysis in these 

contexts. DHS agrees with the commenter that cost-benefit analysis is 

useful for maritime safety and environmental protection regulations. DHS 

currently uses cost-benefit analysis to develop regulations. DHS also 

notes that we consult with other federal agencies, such as EPA, when 

necessary.

4. Suggestions on Rules to Consider for Retrospective Review

In response to our Preliminary Plan, we received public feedback on additional 

regulations that we should consider for retrospective review. We have grouped 

these comments below by functional category. Of the four functional categories, 

DHS only received public comment for regulations in two of those categories 

(i.e., security, and immigration and border management). Because we did not 

receive public comment related to the other two categories (i.e., maritime safety 

and environmental protection, and emergency management and assistance), we do 

not discuss those two categories below.

a. Security

One comment recommended that TSA and CBP streamline regulations so 

that aviation employees are not required to submit biometric and 

biographic data multiple times to support background checks. TSA and 

CBP are working toward reducing redundant background checks and are 

exploring ways to share biometric and biographic data to reduce the 

burden on aviation workers to the greatest extent possible under current 

statutory requirements. For example, TSA has issued a rule that allows 

TSA to deem security checks conducted by other agencies to be 
DHS Final Plan for Retrospective Review

25

comparable to TSA security checks to reduce the need for multiple 

checks.11 

Another comment suggested that DHS employ notice-and-comment 

rulemaking when making any change to CFATS, especially Appendix A. 

The National Protection and Programs Directorate (NPPD), like all DHS 

components, is committed to public input. NPPD continuously reviews its 

programs to make improvements and plans to utilize notice-and-comment 

rulemaking, where feasible, to make those improvements. 

This commenter also recommended that NPPD employ an appeals process 

for facility risk-based tier determinations under CFATS. The current 

CFATS rule, as promulgated, does not contain an appeals process for tier 

determinations. Although that is the case, NPPD believes that technical 

conferences (between DHS and facilities) have provided an exchange of 

information directly related to DHS‘s decisions; they have also provided

opportunities for local changes that may satisfy the facility‘s concerns. 

NPPD will continue to evaluate concerns such as this for any future 

regulatory action related to CFATS.

b. Immigration & Border Management

One commenter resubmitted comments related to the processing of asylum 

applications, such as employment authorization under 8 C.F.R. § 208.7 

and the expansion of the categories of persons eligible for work 

authorizations under 8 C.F.R. § 274a.12. The commenter urged DHS to 

select and prioritize these changes to the regulations and used DHS‘s 

selection and prioritization factors in the Preliminary Plan to support these 

assertions. DHS plans to review this comment more closely and 

potentially consider these regulations for retrospective review.

Another commenter recommended that DHS (and the Department of 

Treasury) consider whether regulations concerning the importation of 

ancient coins should be modified or eliminated. Commenters asserted that 

CBP regulations restrict the importation of rare coins based on their type 

rather than on their find spot as required by the Convention on Cultural 

Property Implementation Act. The commenters also contended that the 

regulations impose prohibitive compliance costs on importers, especially 

small importers, of rare coins, and that the regulations require the 

production of documentation that does not exist or is expensive and cost 

prohibitive to produce. Since the importation of rare coins falls under the 

purview of the Department of Treasury, this comment is not within the 

scope of DHS‘s Plan. DHS has forwarded this comment to the 

Department of Treasury.

 

11 See TSA Final Rule, Air Cargo Security Requirements, 71 FR 30478 (May 26, 2006).
DHS Final Plan for Retrospective Review

26

One commenter extensively discussed the various administrative 

procedures applicable when an arriving traveler makes a claim of 

citizenship. The commenter stated that it is inappropriate for CBP to refer 

an arriving traveler who is making a claim to U.S. citizenship to an 

Immigration Judge via any expedited removal process. The commenter

concluded that a joint DOJ-DHS rulemaking is needed. This comment 

refers to subject matter that overlaps between three DHS components –

ICE, USCIS, and CBP. DHS is reviewing this comment more closely to 

determine the appropriateness and scope of future retrospective review.

DHS also received a comment that encouraged CBP to quickly finalize the 

Global Entry regulations to make the program permanent, expand the 

number of participating airports, and expand eligibility to citizens of other 

countries that participate in the program. The Global Entry final rule is 

currently under development, and DHS anticipates issuance of the final 

rule in the near future. Additionally, DHS is actively working to expand 

the Global Entry program to additional U.S. airports and to include 

nationals from additional countries.

 

Furthermore, a commenter recommended that CBP eliminate the National 

Security Entry and Exit Registration System (NSEERS) program. The 

commenter asserted that NSEERS is redundant and that CBP instead 

should utilize information from the Advanced Passenger Information 

System records, Passenger Name Records, and US-VISIT Entry process. 

Over the past several years, DHS has implemented several new automated 

systems that capture arrival and exit information on nonimmigrant 

travelers to the United States, and DHS has determined that NSEERS, 

which recaptures this data manually when a nonimmigrant is seeking 

admission to the United States, is redundant and no longer provides any 

increase in security. DHS has since determined that it is not necessary to 

subject nationals to special registration procedures. Accordingly, on April 

28, 2011, DHS published a notice in the Federal Register,

12 which 

removed all of the designated countries from compliance with the special 

registration procedures under NSEERS.

One comment recommended that CBP eliminate the I-94 paper form and 

the General Customs Declaration to simplify the overall arrival process for 

passengers. CBP is constantly working to enhance the passenger 

processing experience. In fact, CBP recently automated the form I-94W 

in 2010 and is working to automate other paper forms that passengers and 

airlines use.

 

12 See DHS Notice, Removing Designated Countries from the National Security Entry-Exit Registration System, 76 

FR 23830 (Apr. 28, 2011).
DHS Final Plan for Retrospective Review

27

One comment suggested that CBP reinstate certain air transit programs so 

that nonimmigrant aliens can transit the United States without a visa. The 

commenter reasoned that CBP could utilize the Advanced Passenger 

Information System and Passenger Name Records and the Electronic 

System for Travel Authorization system, to provide the necessary level of 

security to reinstate the program. At this time, DHS does not have plans 

to issue regulations reviving air transit programs.

One commenter pointed out that U.S. airports that have a low level of 

international service (typically small commercial or general aviation 

airports) operate under what is known as ―user fee status‖ and pay CBP 

directly for services provided. The commenter urged CBP to consult with 

the user fee airports about improving the Memorandum of Understanding 

(MOU) that airports enter into with CBP to obtain ―user fee status.‖ The 

commenter asserted that an improved MOU would enhance operations and 

potentially reduce costs for both parties. In addition, the commenter 

encouraged CBP to take a more flexible approach and consider the unique 

characteristics of individual airports. Further, the commenter 

recommended that CBP evaluate the benefit of a version of the MOU with 

less onerous requirements for user fee airports that only receive precleared international flights. CBP is currently developing an NPRM that 

would propose various amendments to the user fee airport status

regulations. CBP will consider these comments in the course of that 

rulemaking. CBP urges the commenter to submit these comments, and 

any others that might arise based on the NPRM, during the comment 

period for that document. 

DHS received another comment recommending that DHS and DOJ 

coordinate their regulations regarding representation of aliens and 

appearances in immigration cases, contained in 8 CFR part 292, and part 

1292, respectively, so that the regulations are more clear. DHS is 

reviewing this comment more closely and will consult with DOJ, as 

appropriate.

DHS also received a comment suggesting that USCIS revise 8 CFR 212.8, 

which covers labor certification requirements, to remove outdated 

language and cross-references. USCIS plans to remove the referenced 

outdated provisions and language in conjunction with its Transformation 

rulemakings, which are currently under development. 

Finally, one comment recommended that USCIS promulgate regulations 

for the Systematic Alien Verification for Entitlements (SAVE) and EVerify programs. DHS notes that currently these programs operate by 

legally enforceable agreements with users of the programs; the agreements 

establish the terms and conditions of participation. DHS plans to review 
DHS Final Plan for Retrospective Review

28

this comment more closely to determine whether regulations are 

warranted.

IV. Current DHS Efforts Already Underway for Retrospective Review of Regulations

A. Overview

DHS and its components already engage in efforts—independent of Executive 

Order 13563—to facilitate the retrospective review of DHS regulations. DHS and 

its components regularly identify rules that are in need of change, whether 

because those rules are obsolete, unnecessary, or unjustified; because they contain 

gaps or loopholes; or because they require supplementation or clarification. 

Not unexpectedly, the formalization of retrospective review within DHS varies by 

component, as a function of the component‘s mission, size, organizational 

structure, resources, staffing, and regulatory priorities. The formation of DHS in 

2003 brought together a large number of entities, each with its own mission,

culture, and approach to retrospective review of its regulations. 

For this and other reasons, DHS has taken significant steps to create a unified and 

integrated Department, focusing on accountability, efficiency, and transparency to 

enhance its performance and to become a leaner, smarter agency better equipped 

to protect the nation. To further the unification and integration of the Department 

in the regulatory arena, DHS has taken the following steps:

DHS has established a headquarters-level office that oversees the 

Department‘s regulatory processes. The Regulatory Affairs Law Division 

(RLD) within the Office of the General Counsel (OGC) manages and 

coordinates the review and clearance of virtually all DHS and component 

regulatory actions. An Associate General Counsel and the Chief 

Regulatory Economist lead the division.

Each DHS regulatory component has a designated Component Regulatory 

Coordinator, who oversees and manages the regulatory program within his 

or her respective component. Component Regulatory Coordinators work 

closely with OGC-RLD.

DHS has a well-established intra-departmental circulation process for the 

review of rulemakings. This process provides an opportunity for all DHS

components that might have equities in particular rulemakings to review 

and assess those rulemakings.

In recent years, DHS has developed and implemented several training and 

educational initiatives (e.g., workshops and roundtables) for DHS 

professionals who work in the area of regulatory affairs. These events are
DHS Final Plan for Retrospective Review

29

not only an opportunity for employees to learn about the federal 

rulemaking process and developments in administrative law, but they are 

also opportunities for DHS professionals to network with their regulatory 

counterparts, to identify best practices, and to share lessons learned in the 

regulatory arena.

DHS has leveraged these existing practices, as well as the component-specific 

practices described below, in developing our Preliminary and Final Plans. We 

will continue to use these practices and expand upon them as we implement our 

Plan for retrospective review.

B. Existing Formal Reviews

Although retrospective review processes in the Department are componentspecific, we have found that there are several common practices across 

components. Not surprisingly, the two largest DHS regulatory components that 

promulgate the highest number of regulations—Coast Guard and USCIS—have

the most extensive processes.

1. Section 610 Reviews

Section 610 of the Regulatory Flexibility Act (RFA)13 instructs agencies to 

review regulations that have or will have a significant economic impact 

upon a substantial number of small entities. The review should be 

conducted on a ten-year cycle for final rules. 

A few DHS components, such as the Coast Guard, use a formalized 

process for these reviews. The Coast Guard maintains an internal list of 

regulations subject to a section 610 review, has a designated staff attorney 

conduct annual checks on the need for reviews, regularly updates a 

database of review deadlines, and notifies program offices of review 

deadlines. In addition, whenever there are such section 610 reviews, the 

Coast Guard publishes a Federal Register notice that informs the public 

about the review and that solicits public comment. If the Coast Guard 

ultimately decides to leave the rulemaking as is, it publishes a second 

Federal Register notice to respond to any public comments to the first 

notice.

2. Other Legally-Required Reviews

DHS components must also conduct reviews of their regulations as 

otherwise required by law. For example, recently, in section 608 of the 

Coast Guard Authorization Act of 2010, Congress directed that ―[a]t least 

once every 10 years, the Secretary shall review and revise the standards 

 

13 5 U.S.C. § 610.
DHS Final Plan for Retrospective Review

30

under subsection (a) to ensure that the standards meet the requirements of 

this section.‖ Subsection (a) requires that when establishing standards for 

certain equipment, the Coast Guard must ensure that standards are ―(1) 

based on performance using the best available technology that is 

economically achievable; and (2) operationally practical.‖ To comply 

with these requirements, the Coast Guard is preparing to institute a process 

similar to the one it uses for section 610 reviews.

3. Unified Agenda Review

All DHS components also use the Unified Agenda of Regulatory and 

Deregulatory Actions (―Unified Agenda‖) as a way to review existing 

regulations. The Unified Agenda, published twice a year, describes the 

regulatory actions that each Federal agency has recently completed or 

expects to issue in the next year. The agendas are listed by the issuing 

agency; the DHS portion of the Unified Agenda contains information on 

regulations issued by DHS and its components. The Unified Agenda is 

available online at www.reginfo.gov, and select portions are published in 

the Federal Register. 

USCIS, in particular, has engaged in a comprehensive review of its rules 

in the Unified Agenda. In the past few years, USCIS has been able to 

finalize rules for which no comment was received, thereby closing those 

entries on the Unified Agenda. In addition, USCIS is working on two 

rulemakings that would finalize an additional 11 rules (that did receive 

public comment). Until now, these rules had been carried in the Unified 

Agenda for years. USCIS is also working on a long-range plan to finalize 

its remaining interim rules.

Similarly, FEMA has taken an active approach with its review of its 

entries in the Unified Agenda. FEMA has identified rulemakings that 

have been pending on the Unified Agenda for some time, and it is now 

seeking to revise and update those rules that are outdated and to close out 

entries that are defunct.

C. Existing Informal Reviews

Beyond formal reviews, all DHS components engage in ongoing and regular 

informal reviews of their existing regulations. Again, while the precise nature of 

the informal review is component-specific, there are several efforts common 

across DHS components. Across the board, several DHS components conduct 

retrospective reviews based on the input they receive from advisory councils, field 

personnel, internal working groups, and regulated entities.

1. Use of Advisory Councils
DHS Final Plan for Retrospective Review

31

Numerous DHS components benefit from the input of multiple advisory 

councils. DHS components consult with, and receive feedback from, 

advisory councils on an ongoing basis. 

CBP, for example, receives feedback from two bodies. The Advisory 

Committee on Commercial Operations of Customs and Border Protection, 

which operates under the provisions of the Federal Advisory Committee 

Act (FACA), advises on matters involving the commercial operations of 

CBP. The Trade Support Network, established pursuant to the North 

American Free Trade Agreement Implementation Act (Pub. L. 103-182, 

19 U.S.C. § 1413(b)(1)) to help fulfill the requirement for consultation 

with the trade community, including importers, brokers, shippers, and 

other affected parties, advises on the modernization of trade processes, 

including those that support revenue and homeland security functions.

The Coast Guard receives recommendations from numerous committees 

established under the FACA. As an example of the success of real-world 

application of these concepts, the Coast Guard utilized the National 

Maritime Security Advisory Committee (NMSAC) and the Chemical 

Transportation Advisory Committee (CTAC) to identify the portions of 

the Coast Guard's maritime security regulations that need review and 

revision. The feedback from NMSAC and CTAC prompted the Coast 

Guard to initiate a rulemaking project to review and update its maritime 

security regulations. 

Similarly, FEMA benefits from the input of two FACA committees, one 

of which is the National Advisory Council (NAC). The NAC, which 

provides advice on regulatory matters, has recently been actively involved 

in advising FEMA on revisions to its individual assistance and public 

assistance programs.

2. Feedback from Field Personnel

Input from field personnel plays a critical role in assisting DHS to 

determine which regulations require review and possibly revision. 

Within TSA, for example, Transportation Security Inspectors, in the 

course of conducting compliance inspections, sometimes learn of rules 

that are being misinterpreted or are difficult to interpret. 

Within CBP, officers stationed in ports and field offices frequently 

provide input based on observations (e.g., inconsistencies among the 

ports) and issues (e.g., complaints from the trade or public) they encounter 

in the field. 

3. Information from Program Offices
DHS Final Plan for Retrospective Review

32

Input and feedback from program offices are essential to DHS component 

efforts to determine which regulations may need revisions. Program 

officials who implement and enforce the regulations and manage the dayto-day operations of the regulatory program (across DHS components) 

provide regular and frequent feedback on DHS regulations.

For example, in CBP, program offices may identify the need for a 

regulatory change and initiate a regulatory review by drafting an internal 

issue paper for consideration by CBP headquarters. In addition, CBP 

often administers internal surveys to determine whether programs and 

processes are working as they should and if improvements can be made.

4. Input from Internal Working Groups

Various DHS components establish internal working groups, comprised of 

operations, policy, and legal staff, to consider regulatory issues.

CBP, for example, has established internal working groups on Import 

Safety, and on Securing America‘s Borders and Ports of Entry. These 

working groups will often identify regulations that are outdated, difficult 

to implement, or that fail to meet the needs of the agency, and 

subsequently recommend amendment to such regulations.

In addition, the immigration components of the Department—CBP, ICE, 

and USCIS—meet quarterly to discuss regulatory issues and the 

regulatory intersections between components.

5. Outreach to Regulated Entities

Through regular and frequent outreach to regulated entities, DHS 

components receive important feedback on the impact and effects of 

existing regulations. This feedback assists components in determining 

whether further regulatory review is warranted and what regulatory fixes 

may be appropriate.

USCIS, for example, hosts town hall meetings, including ones exclusively 

focused on regulatory matters, through its Office of Public Engagement.

Similarly, TSA, through its leadership (e.g., Assistant Administrators, 

Federal Security Directors, and General Managers), frequently consults

with stakeholders, such as at trade association meetings and Sector 

Coordinating Council meetings. Through these venues, TSA often learns 

of issues and concerns regarding its regulations. 

CBP also engages in such outreach. CBP seeks input through public 

surveys; for example, CBP is currently developing and administering two 
DHS Final Plan for Retrospective Review

33

public surveys, one seeking input from international travelers arriving at 

U.S. ports of entry regarding the entry process, and one seeking input from 

commercial entities regarding their use of and experience with the 

Automated Commercial Environment System. In addition, CBP‘s Office 

of Field Operations and Office of International Trade regularly conduct 

outreach with industry stakeholders (e.g., carriers, shippers, importers, 

brokers, sureties, etc.).

V. Elements of the Plan/Compliance with Executive Order 13563

A. DHS Officials Responsible for Retrospective Review 

1. Overall Oversight

Consistent with his role as the Regulatory Policy Officer under Executive 

Order 12866, the General Counsel of DHS will oversee the overall 

implementation of the DHS Retrospective Review Plan. 

Position: General Counsel of the U.S. Department of Homeland Security

Name: Ivan K. Fong

The General Counsel has designated two officials within his office, both 

of whom occupy Senior Executive Service (SES) or equivalent positions, 

to manage the retrospective review process for the Department.

Position: Associate General Counsel for Regulatory Affairs

Name: Christina E. McDonald 

Position: Chief Regulatory Economist

Name: David L. Houser

2. Oversight within Operational Components with Regulatory Responsibility

To further reinforce its commitment to retrospective review and to ensure 

high-level visibility in the components where the regulations are drafted 

and developed, DHS has also designated senior officials, who occupy SES 

or equivalent positions, for DHS operational components with substantial 

regulatory responsibility. 

U.S. Customs and Border Protection

Position: Executive Director, Regulations and Rulings

Name: Sandra Bell

Federal Emergency Management Agency

Position: Director, Office of Policy & Program Analysis

Name: David Kaufman
DHS Final Plan for Retrospective Review

34

U.S. Immigration & Customs Enforcement

Position: Assistant Director for Policy

Name: Rachel Canty (Acting)

Transportation Security Administration

Position: Assistant Administrator for Transportation Sector Network 

Management

Name: John P. Sammon

U.S. Coast Guard

Position: Judge Advocate General and Chair of the Coast Guard 

Marine Safety and Security Council

Name: Rear Admiral F. J. Kenney

U.S. Citizenship and Immigration Services

Position: Chief, Office of Policy & Strategy

Name: Denise Vanison

B. DHS Approach to Retrospective Review

DHS consists of 28 components, each with different missions, organizational 

structures, stakeholders, resources, and regulatory frameworks. Regulated entities 

of DHS range from individuals to States to local, tribal, and private sector entities. 

Some DHS components, such as TSA, were created in the wake of 9/11 while 

others, such as CBP and the Coast Guard, have been in existence for centuries. 

DHS took these differences into account in developing its Preliminary and Final 

Plans. The goal is to provide DHS regulatory components with a series of tools, 

factors, and mechanisms that they can employ, as appropriate, for their respective 

regulatory programs. This framework, which contains a series of performance 

standards, will provide DHS components with the flexibility to tailor their 

individual retrospective review programs to their unique needs, functions, 

resources, and capabilities.

To develop its Preliminary and Final Plans, in addition to seeking public 

comment, DHS OGC convened a Department-wide Working Group. The 

Working Group consisted of representatives from operational components with 

regulatory responsibilities, including CBP, USCIS, USCG, FEMA, ICE, NPPD, 

TSA, as well as the DHS Office of Policy. To acknowledge the integral and 

critical role that economists play in conducting retrospective analyses, attorneys 

and economists were equally represented in the Working Group process. The 

Working Group conducted a series of productive meetings over the past few 

months to formulate ideas and to discuss and consider elements for inclusion in 

the DHS Preliminary and Final Plans. Both the DHS Preliminary Plan and DHS 
DHS Final Plan for Retrospective Review

35

Final Plan are the product of the consensus recommendations of the Departmentwide Working Group.

A central tenet of the DHS Plan is the critical and essential role of public input in 

driving and focusing DHS retrospective review. Because the impacts and effects 

of a rule tend to be widely dispersed in society, members of the public—

especially the regulated entities of our rulemakings—are likely to have useful 

information, data, and perspectives on the benefits and burdens of our existing 

regulations. In developing the Plan, DHS has sought public comment at various 

stages.

DHS intends to continue to solicit input, including actionable and relevant data, 

from the public on which regulations DHS should consider for modification, 

streamlining, expansion, or repeal, so as to make DHS‘s regulatory program more 

effective or less burdensome in achieving its regulatory objectives. Furthermore, 

in light of the Plan‘s focus on public feedback, DHS plans to encourage the use of 

Advance Notices of Proposed Rulemaking (ANPRMs). ANPRMs offer another 

means by which DHS can obtain public input at an early stage. DHS is 

committed to utilizing ANPRMs, where feasible and appropriate, to notify the 

public that DHS is considering an area for rulemaking and to solicit public 

feedback before issuing proposed regulations.

As discussed in further detail below, DHS has attached several appendices to this 

Final Plan. One of those appendices – Appendix B – includes a list of rules for 

which DHS is currently conducting retrospective reviews and considering 

regulatory revisions. In Appendix B, among other things, DHS provides a 

summary of each rule, identifies the Regulatory Identification Number (RIN) 

(where available) associated with each rule, and includes an explanation of why 

DHS has chosen that rule for retrospective review. Generally speaking, DHS 

selected these rules for review, because regulatory revisions, in these situations, 

will allow DHS to streamline procedures and requirements, leverage existing 

resources, reduce duplication, and/or use new technologies. For specific reasons 

related to each rule, please see the far right column in Appendix B. 

In addition, please note that for each of the regulations listed in Appendix B, DHS 

has, or will, include each regulation in the Unified Agenda of Regulatory and 

Deregulatory Actions (Unified Agenda). The Unified Agenda provides additional 

information about each regulation, such as an abstract of the rule and the legal 

authority for the rule. To locate a regulation in the Unified Agenda, please see 

http://www.reginfo.gov/public/do/eAgendaMain, and search for the regulation by 

its RIN. As of the issuance of this Final Plan, the Unified Agenda for Spring 

2011 was available online.

Consistent with the direction of Executive Order 13563, DHS has developed this 

Plan after a careful balancing of our available resources and current regulatory 

priorities against our continuing obligation to promulgate critical regulations. 

DHS has an extensive and active regulatory agenda, including numerous 
DHS Final Plan for Retrospective Review

36

rulemakings that address legislative initiatives and fulfill statutory mandates. 

Given current budgetary resources, DHS is not able to hire additional staff for 

retrospective review. In light of current regulatory priorities (much of it driven by 

statutory mandates), DHS is not able to regroup or dedicate existing staff 

exclusively to provide the level of retrospective review we would prefer. As a 

result, DHS will be limited in its ability to conduct extensive retrospective costbenefit analyses. DHS will, however, leverage existing processes, formalize 

previously informal processes, and use current regulatory personnel to implement 

this Plan. Subject to the availability of appropriations, DHS could expand its Plan 

to encompass dedicated staff for retrospective review and more formalized 

processes for retrospective cost-benefit analyses.

C. Rule Selection, Prioritization, & Efficacy

1. Overview

This DHS Plan sets forth a framework for reviewing existing significant 

regulations and identifying those that may be obsolete, unnecessary, 

unjustified, excessively burdensome, or counterproductive. The goal of 

the Plan is to assess whether it is necessary for DHS to modify, streamline, 

expand, or repeal any Department rules. 

The DHS framework includes a three-step process that DHS and its 

regulatory components will use.

 

First, after consideration of the factors identified below, regulatory 

components will select regulations as candidates for retrospective 

review. 

Second, using the separate factors also listed below, regulatory 

components will prioritize the selected candidates and identify those 

upon which they should focus their efforts.

Third, regulatory components will assess the effectiveness of the 

selected regulations based on an analysis of a final set of factors

identified below. 

2. Rule Selection – Factors to Consider

When selecting regulations as candidates for retrospective review, DHS 

will consider a variety of factors, including any combination of the factors 

listed below. While all of the below factors are important, we believe that 

―public feedback‖ is critical to focusing the DHS retrospective review and 

thus should be the primary factor for consideration. DHS stresses, 

however, that these factors are highly interrelated. For example, ―public 

feedback‖ can provide the mechanism by which we receive useful 
DHS Final Plan for Retrospective Review

37

information regarding developments in technology, advances in science, 

or changes in economic conditions, all of which can, in turn, inform the 

―changed circumstances‖ factor. 

Primary Factor.

Public Feedback. Public feedback regarding potential improvements 

to a regulation. This feedback includes comments that DHS solicits 

through notices and stakeholder contacts, as well as unsolicited 

feedback in the form of rulemaking petitions and complaints. DHS 

will afford significantly greater weight to feedback that identifies 

specific regulations, includes actionable data, or provides viable 

alternatives that meet statutory obligations and regulatory objectives. 

Feedback that simply states that a stakeholder feels strongly that DHS 

should change a regulation, but does not contain specific information 

on how the proposed change would impact the costs and benefits of 

the regulation, is much less useful to DHS. DHS is looking for new 

information and new economic data to support any proposed changes. 

Secondary Factors.

Experience of Program Officials. Need for regulatory change based 

on the experience of the agency personnel who implement and enforce 

the regulations and manage the day-to-day operations of the regulatory 

program. For example, have program managers identified gaps in 

regulations or determined that information once deemed important is 

no longer necessary? Have program officials determined that the 

regulation is not working as originally intended?

Feedback from the Field. Need for regulatory change based on 

information from officers, inspectors, and other employees based in 

the field. For example, are inspectors receiving feedback relevant to 

regulations during site visits? Have officers noted inefficiencies in 

regulatory implementation?

Enforcement Challenges. Need for regulatory change based on 

enforcement or compliance issues. For example, has DHS had to issue 

a large number of waivers pursuant to a particular regulatory 

provision? Is DHS facing challenges in enforcing particular 

provisions of a regulation?

Advisory Councils. Input and feedback from advisory councils that 

routinely advise DHS and/or its components. 

Reports of Oversight Entities. Need for regulatory change in response 

to findings, studies, and/or recommendations of oversight entities, 
DHS Final Plan for Retrospective Review

38

such as the National Transportation Safety Board, Government 

Accountability Office (GAO), USCIS Ombudsman, or DHS Office of 

the Inspector General.

Accident/Incident Data. Need for regulatory change in response to 

accidents and incidents, or as a result of accident or incident data or 

statistics. For example, have accident rates failed to decrease despite 

the promulgation of a regulation intended to lower accident rates?

Changed Circumstances. Need for regulatory change based on 

technological developments, advances in science, changed economic 

conditions, or other factors. For example, can a new technology be 

employed to reduce the burden of the regulation? 

3. Rule Prioritization – Factors to Consider

Once DHS has identified regulatory candidates for retrospective review, 

DHS will assess any combination of the below factors to determine how 

best to prioritize the selected regulations in light of the Department‘s 

limited resources. 

While all factors are important, DHS has identified ―net benefits‖ as the 

factor of primary importance. This comports with Executive Order 

13563‘s direction for agencies to ―select, in choosing among alternative 

regulatory approaches, those approaches that maximize net benefits....‖ 

As DHS prioritizes its rules for retrospective review, DHS will consider 

―net benefits‖ as the primary rule prioritization factor. 

Primary Factor.

Net Benefits. To the extent possible, identify regulations, which if 

modified, would result in the greatest increases in net benefits or 

reductions in net costs. DHS will seek to measure net benefits against 

a baseline. The baseline is the best assessment of how the world will 

look in the future with the regulation in place. This will be compared 

to an estimate of how the world would look if the regulation were 

modified, streamlined, expanded, or removed. DHS will afford higher 

priority to those regulations that are likely to generate higher net 

benefits (or greater reductions in net costs). 

Secondary Factors.

“Significance” Designation of the Rule. The significance designation 

of the rulemaking under Executive Order 12866. DHS will afford 

higher priority to rulemakings that are ―economically significant‖ (i.e., 

that have an annual effect on the economy of $100 million or more or 
DHS Final Plan for Retrospective Review

39

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). 

These regulations have larger economic impacts; where changes to 

these regulations are deemed appropriate and necessary, such changes 

are likely to result in greater net benefits.

RFA Review. The applicability of other legal requirements, such as a 

ten-year review required under the RFA (5 U.S.C. 610). To the extent 

that DHS is already conducting a legally-required review of a rule, 

DHS will consider conducting a retrospective analysis in conjunction 

with the legally-required review.

Duplication & Harmonization. The extent to which amendments to 

DHS regulations could reduce or eliminate overlap, duplication, or 

conflict with other federal regulations; and the extent to which 

amendments to DHS regulations could result in better harmonization 

with existing federal regulations. DHS will also consider areas where 

current regulations have a significant impact on international trade and 

investment and, if applicable, analyze existing international standards 

or regulatory approaches as possible alternatives. 

Ability to Amend without Statutory Change. The ability of DHS to 

modify or amend the selected regulation without seeking statutory 

changes. DHS will afford higher priority to regulations that can be 

amended without statutory changes.

Previous Revision. The amount of time that elapsed since DHS last 

amended the regulation and the nature of amendment, whether 

substantive or minor. As a general matter, DHS will afford higher 

priority to regulations that have not been substantively updated for 

extended periods of time. Of course, this will require a careful 

balancing, as there may sometimes be newer regulations that pose 

immediate problems that need addressing.

Resources. The ability of DHS to conduct the retrospective review in 

light of resources, staffing capabilities, regulatory or leadership 

priorities, and/or national or international incidents.

4. Rule Efficacy – Factors to Consider

Once DHS selects a regulation for retrospective analysis, DHS will 

conduct a review of the regulation to determine whether the regulation is 

effectively and efficiently meeting its regulatory objectives while 

simultaneously minimizing burdens. In reviewing regulations (and in 

developing regulations), DHS continues to look for ways to use disclosure 
DHS Final Plan for Retrospective Review

40

as a regulatory tool. As OMB has explained, ―properly designed 

disclosure requirements can significantly improve the operation of 

markets, leading consumers to make more informed decisions.‖14

For purposes of this Plan, we have grouped DHS regulations into four 

broad functional categories: (1) security, (2) maritime safety and

environmental protection, (3) immigration and border management, and 

(4) emergency management and assistance. DHS will add cyber-security 

as a fifth category when DHS regulations in this category are promulgated. 

Additionally, in the future, DHS may add further categories, as necessary. 

To assess the efficacy of a regulation, DHS will consider and analyze 

factors specific to the regulation category. The identification of different 

factors for each category is necessary, because each rulemaking category 

is inherently different and each rulemaking category has different types of 

data available for analysis.

Security

To combat terrorism and other threats to the homeland, DHS promulgates 

security regulations that regulate, for example, the aviation industry, 

maritime industry, and high-risk facilities in the chemical sector. The 

majority of TSA and NPPD regulations, as well as some CBP and Coast 

Guard regulations, are security regulations. 

The primary factor that will inform the DHS review of security regulations 

will be the nature and substance of current intelligence on the threat 

sought to be mitigated. DHS will consult with members of the 

Intelligence Community to assess whether the threat that initially 

supported the development of the rule continues to be credible and 

substantial. DHS‘s review of security regulations will also be informed by 

the results of security inspections and by interactions between component 

personnel and regulated entities.

In response to public comments received in response to the DHS 

Preliminary Plan, we note that DHS‘s review of intelligence is not limited 

to retrospective review purposes. DHS continuously assesses and 

reassesses the need to respond to new and different security threats

through rulemaking and other means. 

Maritime Safety & Environmental Protection

DHS, through the Coast Guard, issues regulations covering maritime 

safety and environmental protection. The primary factor that will inform 

 

14 See OMB/OIRA Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on 

State, Local, and Tribal Entities, p. 37 (2009).
DHS Final Plan for Retrospective Review

41

the DHS review of maritime safety and environmental protection 

regulations will be analyses of the safety data that the Coast Guard 

maintains. 

Through execution of its missions, the Coast Guard gathers, receives, and 

analyzes data, including some information that relates to regulatory 

efficacy. The Coast Guard will continue to use this information, the 

significant sources of which we have highlighted below, to assess the need 

for revision to maritime safety and environmental protection regulations: 

Data analysis of the Coast Guard statistics allows the Coast Guard 

to identify problems that current regulations are not addressing and 

to consider whether there is a lack of regulation or whether an 

existing regulation is targeting the wrong cause. The Marine 

Information for Safety and Law Enforcement (MISLE) system, for 

example, includes information on investigations of marine 

casualties and pollution incidents. 

Casualty investigations identify potential issues that led to the 

casualties, including possible failure of regulations (or possible 

failure of enforcement or compliance). 

Safety inspections often identify compliance, enforcement, and 

interpretation issues for existing regulations. 

During vessel and equipment reviews, the Coast Guard reviews 

vessel and equipment design, construction, and performance for 

compliance with Coast Guard regulatory standards. The Coast 

Guard evaluates whether technological developments have made 

any of its regulatory standards outmoded or obsolete and whether 

other changing factors in the marine environment affect or should 

be reflected in the Coast Guard‘s regulations.

Participation in voluntary consensus standards bodies enables the 

Coast Guard to evaluate new technical standards and assess 

whether changes are necessary to Coast Guard regulations. 

Immigration & Border Management

DHS also issues regulations that administer immigration and citizenship 

benefits, secure and manage our borders, and regulate people and goods 

entering and exiting the United States. CBP, USCIS, ICE, and 

NPPD/United States Visit and Immigrant Status Indicator Technology 

(US-VISIT) promulgate immigration regulations. CBP, along with the 

Coast Guard, ICE, and NPPD/US-VISIT, promulgate regulations that 

address border management. The primary factor that will inform the DHS 
DHS Final Plan for Retrospective Review

42

review of immigration and border management regulations will be the 

degree to which operational and other efficiencies are achieved, consistent 

with statutory requirements and DHS‘s obligation to enforce the law. 

Approximately half of the comments DHS received in response to our 

March 2011 solicitation of public comments raised immigration issues. 

While commenters did not cite to any particular data supporting a need for 

change, commenters consistently indicated confusion and frustration with 

certain immigration matters. The DHS regulatory process is not the 

mechanism to change provisions of the INA or to address concerns about 

specific immigration benefits; however, the DHS regulatory process can 

seek to reduce regulatory burdens.

Guided by the public comments, with respect to immigration and border 

management regulations, DHS will seek to maximize efficiencies by 

streamlining processes, clarifying requirements, implementing 

technological advancements, and reducing paperwork burdens thereby 

reducing compliance costs, eliminating redundancies, and reducing 

confusion.

Emergency Management and Assistance

DHS, through FEMA, promulgates a wide range of regulations concerning 

emergency management and assistance. A major portion of these 

regulations covers disaster preparedness, response, recovery, and 

mitigation. FEMA provides disaster assistance in these areas through 

grants to State, local, and Tribal governments; certain nonprofit 

organizations; and individuals. FEMA‘s regulations also cover the 

National Flood Insurance Program, which FEMA administers, as well as 

flood mitigation grants, emergency preparedness planning, and priority 

use of resources.

The primary factor that will inform the DHS review of its emergency 

management regulations will be the degree to which operational and other 

efficiencies are achieved, as informed by program feedback from grant 

recipients and advisory committees, external stakeholders, and internal 

program reviews. The overarching goal is to provide assistance after a 

disaster in a timely, efficient, and effective manner, and to ensure all 

FEMA programs are streamlined to the maximum extent possible. 

In response to our March 2011 Federal Register notice, DHS received 

very few public comments related to the emergency management and 

assistance regulations. Nonetheless, we believe that DHS can seek to 

reduce the regulatory burden of FEMA regulations. In its retrospective 

review, FEMA will seek to maximize efficiencies by removing or revising 

defunct or outdated regulatory provisions; proposing regulatory revisions 
DHS Final Plan for Retrospective Review

43

that will result in more effective and timely assistance to the emergency 

management community, disaster survivors, and other stakeholders; and 

by reducing paperwork burdens, thereby reducing compliance costs, 

eliminating redundancies, and reducing confusion. 

D. Process for Retrospective Review

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 in Section V.C.1 of this Plan by (1) publishing 

a general notice seeking public comment, and (2) issuing an internal data call 

within the Department and/or component. Both efforts will seek input on 

regulations that may benefit from retrospective review. Given that DHS issued a 

public notice in 2011, the next cycle would begin in 2014.

At the initiation of a cycle, DHS may issue a general notice that applies to all 

DHS regulations (such as the one issued in March 2011), may issue a notice that 

focuses on a specific category of regulations (i.e., security; marine safety and 

environmental health; immigration and border management; or emergency 

management and assistance) or may issue a notice that applies to a particular 

regulatory component (e.g., CBP, USCIS, USCG, FEMA, ICE, or TSA). 

Depending on resources, DHS may also seek public comment through additional 

methods, such as public hearings or webinars. DHS may also use interactive 

online venues, such as ―EO 13563 Exchange‖ on Regulations.gov, to encourage 

increased public participation.

Consistent with the notice that DHS issued in March 2011, subsequent notices 

will request that commenters identify, with specificity, the regulation at issue, 

providing the CFR citation where available. DHS will also request that 

commenters provide, in as much detail as possible, an explanation of why the 

regulation should be modified, streamlined, expanded, or repealed, as well as 

specific suggestions of ways the Department can better achieve its regulatory 

objectives. DHS will encourage interested parties to provide specific data that 

document the costs, burdens, and benefits of existing requirements. Comments 

that repeat debates over recently-issued rules will be not be useful.

In addition to the public notice, DHS and/or DHS components will also issue an 

internal data call, seeking input on regulations that may benefit from retrospective 

review. The data call will seek input from a wide range of Department personnel, 

including program officials who manage the specific regulatory programs and 

field personnel who enforce and implement the regulations.

Upon reviewing the feedback, and considering the other factors relevant to rule 

selection, DHS components will select rules, if appropriate, for retrospective 
DHS Final Plan for Retrospective Review

44

review according to the criteria outline in section V.C.2. Following the selection 

of rules, DHS will prioritize the rules based on the factors relevant to rule 

prioritization, according to the criteria outline in section V.C.3. As discussed 

above, our primary prioritization factor is the increase in net benefits that a 

modification of a rule would yield. 

DHS components will report regularly on the progress of their retrospective 

reviews to the Department during their regulatory planning meetings with OGCRLD. As necessary, OGC-RLD will provide periodic status updates on all DHS 

retrospective review projects to the General Counsel. 

Absent extenuating circumstances, the retrospective review for prioritized 

regulations should be completed within the three-year cycle. If a rulemaking is 

deemed necessary, the rulemaking need not be fully completed during that threeyear period, although DHS and/or DHS components would initiate rulemaking, 

consistent with resources and regulatory priorities, during that three-year period 

and would make all efforts to promulgate the rulemaking as expeditiously as 

possible.

Consistent with current practice, DHS and/or DHS components would 

continuously accept feedback on an ongoing basis from all sources. DHS may, at 

any time, choose to supplement the retrospective review projects identified in the 

three-year cycle with projects based on a review of any other data or input.

In addition to the triennial review, DHS will conduct regular review of its Unified

Agenda entries, consistent with the twice-per-year cycle established by the 

Regulatory Information Service Center. DHS and its components will seek to 

finalize interim rules and to take action or close out regulatory actions that have 

been pending on the Unified Agenda for an extended number of years.

E. Candidate Regulations for Review

The attached appendices contain a list of DHS‘s candidates for retrospective 

review. We have identified regulations and information collection reviews (ICRs) 

at three different stages.

Appendix A lists recently published regulations and ICRs that DHS has 

modified in ways consistent with the principles of Executive Order 13563. 

These are regulations for which DHS has conducted a review, decided to 

amend existing provisions, and completed the regulatory revisions.

 

Appendix B lists our in-progress retrospective review rules. These are 

regulatory provisions for which DHS has conducted preliminary assessments 

and determined that a regulatory change is likely warranted. 
DHS Final Plan for Retrospective Review

45

Appendix C lists our long-term retrospective review candidates. These are 

regulations, which DHS will consider for retrospective review over the next 

three years, but for which retrospective review has not yet commenced.

F. Culture of Retrospective Analysis

DHS is firmly committed to developing and maintaining a strong, ongoing culture 

of retrospective review. We will do so by leveraging existing practices, as well as 

establishing new mechanisms, including the possibility of building mechanisms 

into prospective regulatory impact analyses that could facilitate retrospective 

analyses. We will engage high-level policy makers, senior leadership, and 

component regulatory coordinators to support and encourage the conducting of 

retrospective analyses. We will educate operational and program staff, legal and 

economic staff, and policy staff to conduct retrospective analyses. 

DHS will reinforce the importance of retrospective analysis through training and 

educational initiatives. DHS will encourage the development of new and 

innovative ways of conducting retrospective review by organizing forums that 

provide an opportunity to share lessons learned and determine best practices. 

DHS will hold component regulatory offices accountable for producing 

retrospective reviews by requiring regular updates on the status of ongoing and 

upcoming retrospective reviews. 

To foster a culture of retrospective analysis, DHS regulatory components will 

build in retrospective review at the earliest stages of regulatory development. 

DHS components will incorporate a discussion of retrospective analysis goals into 

their rulemaking project planning. Incorporating these goals at the beginning of 

the rulemaking process will help to ensure that the component considers 

retrospective analysis through the lifespan of the regulation. It will also enable 

regulatory components to better identify ways to measure the future effectiveness 

of a rule from the start of the planning process.

 

G. Independence of the Retrospective Review Team

The Department has identified the following measures, some of which are 

existing practices, to ensure that DHS‘s retrospective review team and process 

maintains sufficient independence from the offices responsible for writing and 

implementing regulations.

The current organizational structure of that DHS rulemaking program fosters an 

environment that supports independent analysis. 

First, many of the DHS component regulatory offices are separate from the 

program offices that implement regulations. For example, CBP‘s Regulations 

and Rulings office is responsible for drafting regulations and conducting 
DHS Final Plan for Retrospective Review

46

economic analyses; they are in a separate chain of command from the program 

offices (e.g., Office of Field Operations) that implement regulatory programs. 

FEMA‘s Office of Chief Counsel and headquarters program offices work 

closely together in the development and drafting of regulations; field offices 

largely handle the implementation. Similarly, TSA develops its regulations 

through the work of teams of policy experts, economists, and attorneys, and 

with the input of field offices; again, field offices largely handle the 

implementation.

Second, the DHS regulatory process provides a layer of independent review. 

The DHS OGC, specifically RLD, oversees and manages the regulatory 

program at DHS. OGC-RLD, which is led by the Associate General Counsel 

for Regulatory Affairs and the DHS Chief Regulatory Economist, is wholly 

independent from DHS operating components (which would include any 

program offices located in a component).

Attorneys and economists in OGC-RLD review virtually all Departmental and 

component regulations for legal sufficiency and consistency across the 

Department. In addition, OGC circulates all rules through an intradepartmental circulation process; this allows all DHS components to review 

and offer input regarding rules. The internal, independent review and 

oversight process that applies to DHS component regulations will likewise 

apply to DHS retrospective review.

In addition to the two structural elements noted above, DHS has sought to further 

reinforce independence of retrospective review teams by including the following 

additional measures: 

DHS has designated senior-level officials within each component to be 

accountable and responsible for retrospective review in their components. 

In some circumstances, DHS components use advisory committees as a way 

to receive independent input on whether regulatory change is needed.

For regulations that are within the scope of the Memorandum of December 

17, 2010, on ―Scientific Integrity‖ from John P. Holdren, Director of the 

Office of Science and Technology Policy, to Heads of Executive Departments 

and Agencies,‖ DHS may request peer review from federal agencies or other 

independent entities such as the National Academy of Sciences, to the extent 

funding is available. The memorandum is available at 

http://www.whitehouse.gov/sites/default/files/microsites/ostp/scientificintegrity-memo-12172010.pdf.

Finally, DHS may establish internal, interdisciplinary teams of DHS 

employees (e.g., regulatory attorneys, regulatory economists, and policy 

analysts) to conduct peer reviews of retrospective reviews. Resource-
DHS Final Plan for Retrospective Review

47

permitting, DHS would establish a standing working group, whereby 

participants would serve on a rotating basis for a defined period of time. 

H. Actions to Strengthen Internal Review Expertise 

DHS and its components will strengthen internal review expertise by conducting 

internal training. Given available resources, however, DHS is unable, at this time, 

to regroup employees or hire new staff.

Training will focus on conveying the importance of retrospective review as a 

means of analysis and on educating staff on the specific elements of this Plan. 

DHS and its components will train employees on retrospective review through a 

variety of means, including the ones listed below.

DHS OGC currently hosts periodic internal roundtables to discuss issues and 

new developments related to administrative law and policy and to foster an 

open forum for the exchange of ideas. OGC is committed to including 

retrospective review as a future, and perhaps recurring, discussion topic at 

roundtables.

DHS OGC hosts periodic conferences and workshops on various aspects of 

the rulemaking process. These events are designed to educate DHS 

employees on the federal regulatory process and to provide an opportunity for 

the sharing of best practices. OGC is committed to including retrospective 

review as a module at these events.

Almost all DHS component regulatory offices provide training on an annual 

basis and/or to new regulatory employees. DHS components are committed to 

incorporating modules on retrospective review into these training sessions.

I. Coordination with other Federal Agencies

As evidenced by the following examples, DHS works regularly with a wide range 

of other federal agencies with related jurisdiction or similar interests.

USCIS works with DOJ, the U.S. Department of Health and Human Services, 

U.S. Department of Labor (DOL), and U.S. Department of State.

U.S. Coast Guard works with many federal agencies, including the 

Department of Transportation (DOT), Environmental Protection Agency, 

Food and Drug Administration (FDA), Maritime Administration, National 

Oceanic and Atmospheric Administration, and Occupational Safety and 

Health Administration.
DHS Final Plan for Retrospective Review

48

CBP works with many federal agencies, including the U.S. Census Bureau, 

U.S. Department of Commerce (DOC), Consumer Product Safety 

Commission, FDA, DOJ, and U.S. Department of the Treasury. 

FEMA works with the U.S. Department of Housing and Urban Development. 

ICE works with DOL and DOJ, including the Executive Office for 

Immigration Review. 

TSA works with DOT, including the FAA.

DHS and its components coordinate frequently, regularly, and closely with other 

federal agencies on rulemaking development. Coordination takes the form of 

periodic meetings, formal working groups, informal staff discussions, and the 

sharing of draft regulations. In many cases, DHS components issue joint rules 

with other federal agencies. DHS will continue to leverage these existing 

relationships and arrangements that enable rule-related coordination with other 

federal agencies. 

VI. Elements of Retrospective Cost-Benefit Analysis

A. Resource Considerations for the Cost-Benefit Analysis

DHS is committed to the retrospective analysis of its existing regulations. DHS, 

however, must carefully balance the resource requirements of retrospective costbenefit analysis against its continuing obligation to promulgate critical 

regulations, many of which are required by statute. Executive Order 13563 

recognizes that this Plan must be ―consistent with law and [the agency‘s] 

resources and regulatory priorities. . . .‖ Given available resources, DHS is 

unable, at this time, to hire new staff to implement this Plan. In addition, due to 

the specialized nature of this type of work, it would not be practical to assign nonregulatory personnel to this type of task. Rather, the personnel necessary to 

conduct retrospective cost-benefit analyses will be taken from rulemaking teams,

which are already responsible for implementing existing regulatory priorities.

B. Factors to Consider when Conducting Retrospective Cost-Benefit Analyses

When estimating the impact of a rule before it takes effect (ex ante estimates), the 

baseline from which the costs and benefits are determined is the best assessment 

of the way the world would look absent the proposed action.15 . When the 

benefits and costs of a rule are estimated after the rule has taken effect (ex post or 

retrospective estimates), the analysis estimates what has actually happened due to 

 

15 See OMB Circular A-4, p. 15.
DHS Final Plan for Retrospective Review

49

issuance of the rule. It should be noted that a retrospective analysis designed to 

determine the accuracy of ex ante estimates does not, by itself, provide full 

guidance on the desirability of reforming the existing regulation. For example, 

the costs and benefits of rescinding a regulation are not the inverse of the costs 

and benefits of promulgating a regulation. The compliance cost savings of 

rescinding an existing regulation will be lessened by the sunk costs (e.g., one-time 

equipment costs). 

When DHS or any of its components conducts a retrospective cost-benefit 

analysis, this analysis should provide information as to whether the rule is 

meeting its objectives; whether changed circumstances warrant revisions or 

revocation; and whether the rule meets the cost-beneficial or effectiveness 

measures originally considered. Based on the varying types of rules that DHS 

issues, we have identified several significant factors that DHS and components 

will consider when conducting a retrospective cost-benefit analysis. Therefore, to 

determine whether removal of a rule is warranted, it is important to compare costs 

and benefits with and without the rule on a ―going-forward‖ basis.

 

1. Cost-Benefit or Cost-Effectiveness. Update the population of affected 

entities and compare the actual costs, benefits, or cost-effectiveness 

metrics of the regulation to those estimated in the analysis to determine if 

the regulation is still justified or warranted. Determine whether changes in 

technology or unanticipated changes in business practices decreased (or 

increased) the anticipated compliance costs or benefits.

2. Distributional Effects & Small Entity Analysis. Update and review the 

small entity analysis in accordance with the RFA to ensure that DHS 

accurately calculated the estimated costs and populations of small entities. 

DHS plans to consider the impacts on all of the types of small entities 

considered under the Regulatory Flexibility Act, including small 

businesses, small organizations, and small governmental jurisdictions. In 

addition, if, during the course of conducting a retrospective review, DHS 

believes that a subpopulation, such as lower income individuals, is bearing 

a disproportionate cost or receiving a disproportionate benefit of the rule, 

then DHS would consider and discuss these distributional effects too. 

3. Alternative Regulatory Approaches. Determine whether the regulation 

could be achieved as effectively through an alternative regulatory 

approach that would impose less economic burden on regulated industries, 

particularly on small entities, given the new information available from 

the ex post review. Consistent with Executive Order 13563, DHS should 

select, in choosing among alternative regulatory approaches, those 

approaches that maximize net benefits.
DHS Final Plan for Retrospective Review

50

4. Public Input. Request and incorporate any comments received from the 

public on the costs and benefits of the rule to help ensure the component 

has as much available information as reasonably possible.

5. Unintended Effects. Determine if there are any unintended effects or 

interactions as a result of the rule. Both positive and negative unintended 

effects should be examined. 

6. Further Analysis. Given resource availability, determine whether it is 

necessary to conduct further research (e.g., contracting a research study 

and/or conducting a public hearing) in order to fully inform the analysis. 

C. Preliminary Expected Scope of Cost-Benefit Analyses Based on Public 

Comments

After reviewing the public comments received in response to our March 2011

Federal Register notice, IdeaScale webpage, and DHS Preliminary Plan, and after 

considering the discussions at the Department-wide Working Group on 

retrospective review, our preliminary analysis indicates that a significant number 

of retrospective analyses will not require extensive cost-benefit studies. 

With respect to the rule categories of immigration and border management, and 

emergency management and assistance, the public comments revealed that 

reducing compliance costs by streamlining processes, clarifying requirements, and 

reducing paperwork burdens may be the major types of revisions needed in those 

areas. In fact, the top-voted comment in IdeaScale recommended that DHS 

change the current FEMA State Standard and Enhanced Hazard Mitigation Plan 

update requirement from every three years to every five years, so that it would be 

consistent with current Local Hazard Mitigation Plan update requirements.

Commenters claimed that five years would be an appropriate timeframe for state 

mitigation plan updates for efficiency reasons. An analysis of this type of change 

is likely a straightforward one, whereby the FEMA economists would estimate the 

reduction in paperwork burden costs for a five-year plan instead of a three-year 

plan. 

With respect to the category of security regulations, commenters raised issues 

indicating that the Department needs to consult with the Intelligence Community 

to assess whether a given regulation is supported by a continued security threat. 

Assuming there is a continued threat, the Department should consider whether 

there are more cost-effective alternatives available to meet statutory obligations 

and regulatory objectives. 

With respect to the category of marine safety and environmental protection 

regulations, commenters did not provide any input, including any cost-benefit 

information, on that category of regulations.
DHS Final Plan for Retrospective Review

51

Finally, in some instances, when revising regulations to streamline requirements 

or to reduce confusion about compliance requirements, quantifying such savings 

can be very difficult. The Department may not find it useful to engage in 

retrospective cost-benefit analyses when savings are difficult to quantify but the 

qualitative benefit of adopting the change is obvious. There is a cost to the public 

for delaying common-sense regulatory changes. 

D. Steps Taken to Ensure DHS has Data to Conduct a Robust Retrospective Analysis

1. Challenges to Obtaining Data

The Department believes obtaining quality data could be a challenge for 

the retrospective analyses of its regulations. GAO has reached similar 

conclusions, noting, in the past, that the inability to obtain the information 

and data needed to conduct retrospectives analyses is a major barrier to 

such reviews.16 

Thus far, there has been a lack of substantive cost-benefit data from the 

public. For example, in our March 2011 Federal Register notice, we 

specifically posed questions such as—―What information, especially new 

or additional information or data, regarding the costs and benefits of these 

regulations are available?‖—to help facilitate public comments in this 

area. We did not receive any substantive information or data from the 

public that would assist us in conducting retrospective cost-benefit 

analyses. 

2. Available Sources of Data

Despite the challenges of obtaining information, DHS does have some 

useful sources available to help determine if a rule should be revised or 

removed. As previously explained in Section IV.C ―Existing Informal 

Reviews,‖ there are existing data sources that can be harnessed to inform a 

retrospective cost-benefit analysis. DHS also uses several internal data 

systems, which may be useful when conducting cost-benefit retrospective 

analyses. 

For example, a key tool used by the Coast Guard to provide information 

for its regulatory evaluations is the Marine Information for Safety and 

Law Enforcement (MISLE) system. It includes data and information from

investigations of marine casualties and pollution incidents. These 

investigations will typically provide a description of the accident, an 

estimate of the amount of contaminant released, number of injuries or 

 

16 Reexaming Regulations: Opportunities Exist to Improve Effectiveness and Transparency of Retrospective 

Reviews, p. 35, GAO-07-791 (July 2007).
DHS Final Plan for Retrospective Review

52

fatalities, and property damage (if applicable). MISLE can assist the 

Coast Guard in determining if regulations intended to reduce oil spills and 

increase maritime safety are having the expected effect. It should be noted, 

however, that MISLE does not specifically identify the effectiveness of 

any particular regulation or cumulative influence of multiple regulations.

In addition, depending on the nature of the regulation being considered, 

CBP uses a variety of internal databases to assist with its regulatory 

evaluations. For example, CBP uses its Operations Management 

Reporting (OMR) data warehouse to track the volume of travelers and 

conveyances entering the United States at each port. It uses its Borderstat 

database to track wait times at U.S. borders. And it uses Automated 

Commercial Environment (ACE) to access data on the volumes and values 

of goods entering the United States. Many of CBP‘s regulations have a 

potential impact on the number of travelers or conveyances entering the 

U.nited S.tates or the time they spend waiting to be processed. As part of 

a retrospective review, CBP might extract information from these 

databases to study traveler volumes and wait times before and after a rule 

goes into effect. 

Finally, DHS will continue to avail itself of the wealth of publicly 

available economic information produced by other government agencies. 

DHS routinely uses information from agencies such as the Bureau of 

Labor Statistics, DOC, and DOT to inform our ex ante estimates. These 

external sources of information provide data on a host of important 

variables such as wage rates, turnover rates, and industry populations. To 

the extent practicable, DHS plans to use information from other federal 

agencies to assist with our retrospective reviews. 
DHS Final Plan for Retrospective Review

53

Appendix A: Recently Published Regulations & ICRs

Component RIN CFR Cite 

or OMB 

Control 

Number

Previous 

Stages

Title Summary Accomplishment

USCIS 1615-AB69 8 CFR 274a Interim Final 

Rule 

published 

12/17/2008 

73 FR 76505

Documents 

Acceptable for 

Employment 

Eligibility 

Verification

This rule finalized an interim 

final rule that amended the 

DHS regulations governing 

the types of acceptable 

identity and employment 

authorization documents and 

receipts that employees may 

present to employers for 

completion of Form I-9, 

―Employment Eligibility 

Verification.‖

This rule updated existing regulations to 

reflect current requirements and 

practices. This regulation also improved 

the integrity of the Form I-9 process. 

Final Rule 

published 

4/15/2011 

73 FR 2125
DHS Final Plan for Retrospective Review

54

USCIS 1615-AB71 8 CFR 

214.2(h)

No previous 

rulemakings

Registration 

Requirement for 

Petitioners 

Seeking to File 

H-1B Petitions 

on Behalf of 

Aliens Subject 

to the Numerical 

Limitations

NPRM 

published 

3/3/2011 

76 FR 11686

This rule proposes to require 

employers seeking to 

petition for H-1B workers 

subject to the statutory cap 

to first file electronic 

registrations with USCIS 

during a designated 

registration period.

The rule, if finalized, would reduce 

petitioners‘ administrative burdens and 

associated costs with preparing a 

complete H-1B petition prior to knowing 

whether the statutory limit has been 

reached. USCIS anticipates that this 

new process will reduce administrative 

burdens and associated costs on 

employers who currently must spend 

significant time and resources compiling 

the petition and supporting documents 

for each potential beneficiary without 

certainty that the statutory cap has not 

been reached. The proposed mandatory 

registration process also will alleviate

administrative burdens on USCIS 

service centers that process H-1B 

petitions. 

USCG 1625- AB60 46 CFR Part 

160, subpart 

160.076

No previous 

rulemakings

Inflatable 

Personal 

Floatation 

Devices

This direct final rule updated 

Coast Guard regulations 

related to structural and 

performance standards for 

inflatable recreational 

personal flotation devices. 

These updates were 

requested by industry as well 

as recognized as necessary 

by Coast Guard personnel.

This rule updated the standards that are 

incorporated by reference into 46 CFR 

part 160, subpart 106.076. The previous 

standards were outdated. The newer 

standards contain technological and 

safety developments.

Direct Final 

Rule published 

3/30/2011 

76 FR 17561
DHS Final Plan for Retrospective Review

55

CBP 1651-AA68 19 CFR 

123.71–76

NPRM 

published 

12/17/2009 

74 FR 66932

Land Border 

Carrier Initiative 

Program

This final rule amended CBP 

regulations by removing the 

provisions pertaining to the 

Land Border Carrier 

Initiative Program (LBCIP). 

The LBCIP was established 

as a voluntary industry 

partnership program under 

which participating land and 

rail commercial carriers 

would agree to enhance the 

security of their facilities and 

conveyances to prevent 

controlled substances from 

being smuggled into the U.S. 

This rule updated CBP regulations by 

removing the outdated provisions 

regarding the LBCIP. CBP has 

developed a more comprehensive 

voluntary industry partnership program 

known as the Customs-Trade 

Partnership Against Terrorism (CTPAT) and is focusing its partnership 

efforts on the further development of CTPAT. C-TPAT builds upon the best 

practices of the LBCIP, while providing 

greater border and supply chain security 

with expanded benefits to approved 

participants.

Final Rule 

published 

2/8/2011 

76 FR 6688

CBP n/a ICR 

1651-0111

Effective 

6/29/2010

Electronic 

Communication; 

Arrival and 

Departure 

Record

For air travelers arriving in 

the United States, CBP 

replaced the paper version of 

Form I-94W ―NonImmigrant Visa Waiver 

Arrival/Departure‖ with the 

automated system, 

Electronic System for Travel 

Authorization (ESTA).

By utilizing the ESTA submission for air 

travelers arriving in the United States 

and thus eliminating the paper version of 

Form I-94W, CBP reduced the reporting 

burden for air travelers arriving in the 

United States by an estimated 1,695,750 

hours.
DHS Final Plan for Retrospective Review

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TSA n/a ICR 

1652-0046, 

1652-0003

Effective 

12/2010

Administrative 

Simplification; 

Secure Flight; 

Aircraft 

Operator 

Security

TSA reduced the burden of 

U.S. and international 

aircraft operators by 

assuming responsibility for 

checking passengers against 

government watch lists 

through TSA‘s Secure Flight 

program. The mission of the 

Secure Flight program is to 

enhance the security of 

domestic and international 

commercial air travel 

through the use of improved 

watch list matching provided 

by TSA officials.

By assuming responsibility for checking 

passengers against government watch 

lists through TSA‘s Secure Flight 

program, TSA reduced the reporting 

burden for U.S. and international aircraft 

operators by an estimated 1,500,000 

hours.
DHS Final Plan for Retrospective Review

57

Appendix B: In-Progress Reviews of Regulations & ICRs

Component RIN 

CFR Cite

or OMB 

Control 

Number

Previous 

Stages Rule Summary Reason for Review

USCIS 1615-AB83 8 CFR Parts 

1-499

No previous 

rulemakings

Immigration Benefits 

Business 

Transformation: 

Increment I

Current USCIS immigration benefits span a 

great number of regulations that rely on paper 

forms and non-integrated information 

technology systems. This rule amends the 

regulations to accommodate USCIS‘s phased 

multi-year business transformation initiative 

to restructure its business processes and 

related information technology systems.

 Improve 

efficiency by reflecting 

electronic system 

developments.

 Eliminate the 

capture and processing of 

redundant data.

 Facilitate the 

automation of USCIS 

forms and the potential to 

reduce the number of 

USCIS forms. 

USCIS 1615-AB95 8 CFR Parts 103, 

212, 214, 220, 

245, 248, and 

274a

No previous 

rulemakings

Immigration Benefits 

Business 

Transformation: 

Nonimmigrants; 

Students and 

Exchange Visitor 

Program

This rulemaking primarily focuses on 8 CFR 

Part 214, which covers the nonimmigrant 

classes, including the requirements for 

admission, extension, maintenance of status, 

and the Student and Exchange Visitor 

Information System (SEVIS).

 Provide the public 

with a more user-friendly 

organization of regulatory 

requirements.

 Reduce public 

confusion.
DHS Final Plan for Retrospective Review

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USCIS 1615-AB71 ICR 1615-0009 n/a Electronic 

Communications; 

Registration 

Requirement for 

Petitioners Seeking 

to File H-1B 

Petitions

USCIS is proposing to require employers 

seeking to petition H-1B workers subject to 

numerical limitations to first file electronic 

registrations with USCIS during a designated 

registration period. If necessary, registrations

will be randomly selected to file H-1B 

petitions. This registration process will 

reduce the petitioner‘s administrative burdens 

and associated costs with preparing a 

complete H-1B petition prior to knowing 

whether the statutory limit has been reached. 

 This action will 

result in an estimated 

burden reduction of 

13,750 hours.

USCIS 1615-AB76 8 CFR Parts 103, 

214, 274a, and 

299

Interim Final Rule 

published 

10/27/2009 

74 FR 55094

Commonwealth of 

the Northern 

Mariana Islands 

Transitional Worker 

Classification

This final rule creates a new, temporary, 

transitional worker classification for workers 

in the Commonwealth of the Northern 

Mariana Islands (CNMI). The transitional 

worker program is intended to provide for an 

orderly transition from the CNMI permit 

system to the U.S. Federal immigration 

system.

 This rule will 

result in an estimated 

savings of $6.8 million

over the baseline through 

2014. 

The savings are 

attributable to the fact 

that multiple 

beneficiaries will now be 

allowed to be included in 

a single petition.
DHS Final Plan for Retrospective Review

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USCG 1625-AA16 46 CFR 

Subchapter B

Interim Final Rule 

published 

6/26/1997 

62 FR 34505

NPRM published 

11/17/2009 

74 FR 59353

Supplemental 

NPRM published 

3/23/2010 

75 FR 13715 

Implementation of 

the Amendments to 

the International 

Convention on 

Standards of 

Training, 

Certification and 

Watchkeeping for 

Seafarers (STCW), 

1978 as amended, 

and Changes to 

Domestic 

Endorsements

The International Convention on Standards of 

Training, Certification and Watchkeeping for 

Seafarers (STCW), 1978 as amended, sets 

forth minimum training and demonstrations of 

proficiency requirements for merchant 

mariners. It provides a consistent set of 

training and competencies for merchant 

mariners operating in U.S. and international 

waters. The Coast Guard has codified these 

Convention standards in the U.S. Code of 

Federal Regulations. The Coast Guard 

develops these standards with other 

international parties at the International 

Maritime Organization of the United Nations. 

The Coast Guard also develops similar 

standards of training and proficiency 

requirements for mariners that work only in 

U.S. waters. 

 Update 

requirements to address

gaps in minimum training 

requirements for 

seafarers. 

 Implement 

amendments by revising 

current regulations to 

ensure that the United 

States complies with their 

international obligations.

 Provide additional 

flexibility for sea service 

and training requirements. 

 Clarify STCW 

requirements in response 

to requests for 

interpretation and 

guidance. 

USCG TBD 46 CFR Parts 10, 

11, 12 and 15

No previous 

rulemakings

Elimination of TWIC 

for Certain Mariner 

Populations 

(Implementation of 

Section 809 of the 

2010 Coast Guard 

Authorization Act)

Section 809 of the Coast Guard Authorization 

Act of 2010 eliminated the requirement that 

certain mariners must obtain a Transportation 

Worker Identification Credential (TWIC). 

The Coast Guard is working on regulatory 

provisions that would implement section 809. 

Related to this, the Coast Guard is also 

considering regulatory changes that would 

provide an exemption from paying certain 

fees for a subset of the above mariner 

population.

 Eliminates TWIC 

requirements for certain 

mariners. 

 Eliminates trips to 

TWIC Enrollment 

Centers for certain 

mariners.
DHS Final Plan for Retrospective Review

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USCG 1625-AB38 33 CFR Chapter 

1, Subchapter H

Final Rule 

published 

10/22/2003 

68 FR 60448 

Update to 

Maritime Security

Regulations

The Coast Guard regulations implementing 

the Maritime Transportation Security Act of 

2002 (MTSA) provide security measures for 

vessel and port facility operations in U.S. 

ports. Among other things, these regulations 

require owners or operators of vessels and 

port facilities to develop security plans. Since 

promulgation of the MTSA regulations, the 

Coast Guard has granted exemptions from 

MTSA provisions on an ad hoc, individual 

basis.

Through this rule, the Coast Guard would 

formalize several categories of exemptions, 

which, in turn, will reduce the burden 

associated with the current ad hoc waiver 

process.

 Clarify MTSA 

requirements in response 

to requests for 

interpretation and 

guidance.

 These regulatory 

revisions would provide 

annual cost savings of 

$125,000.

CBP 1651-AA94 19 CFR Part 162 Final Rule 

published 

02/22/2005

70 FR 8509

Internet Publication 

of Administrative 

Seizure/Forfeiture 

Notices

Current regulations provide for publication of 

notices of seizure and intent to forfeit seized

merchandise in local newspapers for seized 

merchandise appraised at more than $5,000, 

and by posting the notice at the local 

customhouse for seized merchandise 

appraised at $5,000 or less. This regulation 

would allow for online posting of such 

information. 

 This regulatory 

change would provide an 

estimated annual savings 

of $1 million.

CBP 1651-AA93 8 CFR 100 and 

19 CFR 101

No previous 

Rulemaking

Closing of White 

Tail Crossing 

CBP is developing a proposal to close the port 

of entry in Whitetail, Montana. Whitetail is 

one of the least trafficked ports, and the 

facility does not have the infrastructure to 

meet modern operational, safety, and 

technological demands for ports of entry. 

 Assess whether 

facilities have the 

infrastructure to meet 

modern operational, 

safety, and technological 

demands for ports of 
DHS Final Plan for Retrospective Review

61

entry. 

 The net benefit 

(estimated benefit less 

estimated cost) of the 

crossing closure would be 

about $8.2 million the 

first year and $396,000 

each year thereafter.

CBP 1651-AA73 8 CFR 103.7 

(amended) & 

8CFR 235.7a 

(added)

NPRM published 

11/19/2009 

74 FR 59932

Establishment of 

Global Entry 

Program

Current CBP regulations do not include 

provisions for all of CBP‘s trusted traveler 

programs and those that are included are set 

forth in different provisions and are not 

comprehensive. For example, the trusted 

traveler pilot program, Global Entry, is not yet 

incorporated in the regulations. CBP issued a 

notice of proposed rulemaking to incorporate 

Global Entry into the regulations and is 

working on a final rule. 

 Provide 

transparency to the 

public.

 Make the program 

a permanent regulatory 

program.

 Initiate the 

process of incorporating 

comprehensive 

regulations for CBP 

trusted traveler programs. 

 Enrollees in this 

voluntary program could 

save an average of 7.6 

minutes of wait time per 

trip by using Global Entry 

kiosks. 

ICE 1653-AA44 8 CFR 214.2 and 

214.15

Final Rule 

published

12/11/02 

67 FR 76255

Revisions to 

SEVIS regulations

The Student and Exchange Visitor 

Information System (SEVIS) is an electronic 

filing and adjudication system for schools that 

seek to enroll foreign nonimmigrant students. 

SEVIS improves data collection and 

 Remove outdated 

provisions. (Commenters 

requested revision to 

these regulations.) 
DHS Final Plan for Retrospective Review

62

reporting, enhances customer service, 

facilitates compliance with regulations, and 

helps ICE better monitor school and exchange 

programs.

ICE is working with the Department of State 

to implement the deployment of SEVIS II, the 

next generation of the system.

 The estimated 

total annual burden 

reduction will be 

approximately 11,000 

hours.

The estimated 

total annual savings of 

this rule will be

approximately $220,110.

TSA 1652-AA35 49 CFR Part 1552 

subpart A

Interim Final Rule 

published 

9/20/2004 

69 FR 56324

Revisions to the 

Alien Flight Student 

ProgramAFSP 

regulations

The Alien Flight Student Program (AFSP)

rulemaking, among other things, requires a 

prospective alien flight student to undergo a 

background check called a ―security threat 

assessment‖ before each training event. TSA 

charges each alien flight student a fee 

intended to cover the costs of the vetting. 

 Improve the 

accuracy of vetting fees 

and equity among fee 

payers. 

 Enable the 

implementation of new 

technologies to support 

vetting.

 Increase efficiency 

by enabling existing 

threat assessment 

processes to be leveraged.

 The estimated total 

savings, over a five-year 

period, for alien fight 

students is $18,107 at a 

seven percent discount 

rate.
DHS Final Plan for Retrospective Review

63

TSA 1652-AA01 49 CFR Part 1511 Interim Final Rule 

published 

2/20/2002 

67 FR 7926

Aviation Security 

Infrastructure Fee 

(ASIF)

The Aviation Security Infrastructure Fee 

(ASIF) rule provides that each air carrier pays 

fees based on what that carrier spent on 

certain security measures in the calendar year 

2000. Under the statute, after fiscal year 

2005, TSA may re-evaluate how much each 

carrier pays, including using market share or 

other appropriate measure. 

 Update the fee 

distribution among air 

carriers as a result of 

market share changes 

since 2000. 
DHS Final Plan for Retrospective Review

64

Appendix C: Long-Term Retrospective Review Candidates

Component

CFR Cite or 

OMB Control 

Number

Rule Summary Reason for Consideration

USCIS 8 CFR Parts 103, 105, 

204, 205, 210, 212, 

214, 245a, 274a, 299, 

320, 322, and 341

Requirements for 

Filing Motions and 

Administrative 

Appeals

These regulations cover the requirements for 

filing motions and administrative appeals. 

Currently, applicants and petitioners are not 

required to exhaust administrative remedies 

before seeking judicial review of an unfavorable 

decision. Several commenters raised issues 

relating to the streamlining of procedures before 

the Administrative Appeals Office (AAO). 

 USCIS will consider these 

comments in reviewing its existing AAO 

regulations.

USCIS 8 CFR Part 208 Procedures for 

Asylum and 

Withholding of 

Removal

Several commenters addressed the current 

regulations governing asylum covering a range 

of issues, including, but not limited to, the 

parameters of the ―particular social ground‖ for 

asylum and employment authorization 

eligibility and the ―clock.‖ 

 USCIS will coordinate with ICE 

and consider these comments when 

reviewing its asylum regulations to 

provide clear guidance for applicants.

USCIS 8 CFR Part 214 Nonimmigrant 

Classes

Several commenters addressed the current 

regulations related to temporary workers. The 

comments spanned the extensive range of 

nonimmigrant visa categories, including but not 

limited to, the expansion of optional practical 

training, the expansion of dual intent to other 

visa categories, blanket visa category L 

procedures, and provisions related to visa 

categories O and P.

 USCIS will consider these 

comments when reviewing its temporary 

worker regulations to provide clear 

guidance for employers.
DHS Final Plan for Retrospective Review

65

USCIS 8 CFR Part 245 Adjustment of Status 

to that of Person 

Admitted for 

Permanent Residence

Several commenters requested revisions to the 

current regulations governing adjustment to 

permanent resident status covering a range of 

issues, including, but not limited to, permitting 

earlier filing of adjustment applications to 

improve DOS visa number tracking, permitting 

overseas travel for various categories of 

nonimmigrants while an adjustment application 

is pending, and permitting spousal employment 

authorization for adjustment applicants. 

 USCIS will consider these 

comments when reviewing its adjustment 

provisions to provide clear guidance for 

applicants.

USCIS 8 CFR 274a.12 Classes of aliens 

authorized to accept 

employment

Several commenters suggested changes to 

existing regulations to expand the categories of 

aliens and spouses eligible for employment 

authorization.

 USCIS will consider these 

comments when reviewing its 

employment authorization regulations.

USCG 33 CFR Parts 26, 161, 

164, and 165 (68 FR 

60559)

Automatic 

Identification System; 

Vessel Carriage 

Requirement 

(For Vessel Traffic 

Service areas)

Current regulations contain vessel carriage 

requirements, and technical and performance 

standards for an automatic identification system 

(AIS). These regulations promulgated in 2003 

implemented the AIS vessel requirements of the 

Maritime Transportation Security Act of 2002 

and the International Maritime Organization 

requirements adopted under International 

Convention for the Safety of Life at Sea, 1974, 

as amended.

 The Coast Guard will consider 

evaluating the effectiveness of the rule in 

increasing navigation safety, reducing 

risk of accidents, and enhancing maritime 

domain awareness.
DHS Final Plan for Retrospective Review

66

USCG 46 CFR Part 4

(70 FR 75954)

Marine Casualties and 

Investigations; 

Chemical Testing 

Following Serious 

Marine Incidents

Current regulations require that mariners or 

their employees involved in a serious marine 

incident are tested for alcohol use within 2 

hours of the occurrence of the incident as 

required under the Coast Guard 

Authorization Act of 1998. These 

regulations also require that most 

commercial vessels have alcohol testing 

devices on board, and authorize the use of 

saliva as an acceptable specimen for alcohol

testing.

 The Coast Guard will review whether 

the reporting requirements and on-board 

testing device requirements have increased 

enforcement of the Coast Guard drug testing 

requirements.

USCG 33 CFR Parts 151 and 

153 

(70 FR 74668)

Reporting Marine 

Casualties

Current Coast Guard regulations governing 

marine casualty reporting require 

―significant harm to the environment‖ as a 

reportable marine casualty, and by requiring 

certain foreign flag vessels, such as oil 

tankers, to report marine casualties that 

occur in waters subject to U.S. jurisdiction, 

but beyond U.S. navigable waters, when 

those casualties involve material damage 

affecting the seaworthiness or efficiency of 

the vessel, or significant harm to the 

environment. 

 The Coast Guard will consider 

evaluating whether the data received under 

the reporting requirements fulfill the purpose 

of the requirements and whether any 

modifications to regulations are necessary.
DHS Final Plan for Retrospective Review

67

USCG 33 CFR and 46 CFR Material Incorporated 

by Reference in 33 

CFR and 46 CFR

Currently, many Coast Guard regulations 

rely on material incorporated by reference to 

set technical standards for vessels and 

equipment regulated by the Coast Guard. 

The materials incorporated by reference are 

often consensus standards developed by 

national and international standards bodies, 

who continually update their standards. The 

Coast Guard does not yet have a system to 

periodically review the materials 

incorporated by reference into Coast Guard 

regulations and ensure we have the most 

updated standard acceptable to the Coast 

Guard incorporated by reference.

 The Coast Guard will consider 

updating regulations that contain material 

that has been previously incorporated by 

reference.

CBP 8 CFR part 280 International Carrier 

Bonds 

Current regulations have two separate 

procedures for the assessment and collection 

of carrier fines depending on whether the 

violation involves cargo or persons. 

 CBP will review these regulatory 

procedures to determine whether they can 

streamline them.

FEMA 44 CFR 206.47 Increased Federal 

Cost Share and 

Reimbursement for 

Force Account Labor 

for Public Assistance 

Debris Removal

Currently, this rule does not allow for 

reimbursement of force account labor for 

debris removal activities. This rule also 

does not allow for increased cost share when 

applicant has a debris management plan. 

 FEMA will consider ways to increase 

the efficiency of debris removal in a disaster 

(e.g., by providing an incentive to applicants 

to develop and adopt a FEMA-approved 

debris management plan.) FEMA will 

consider expanding and strengthening these 

regulations.

FEMA 44 CFR 201.3 State Standard and 

Enhanced Mitigation 

Plan

Currently, this rule requires applicants for 

hazard mitigation assistance to update the 

Standard and the Enhanced State Mitigation 

Plans every 3 years.

 FEMA will consider whether it 

would be more efficient to extend the review 

period to 5 years for each of the plans as 

requested by public commenters.
DHS Final Plan for Retrospective Review

68

FEMA ICRs: 1660-0072, 

1660-0073, 1660-

0054, 1660-0025, 

1660-0114, 1660-

0116, 1660-0119, 

1660-0120, 1660-

0121, 1660-0122, 

1660-0123, 1660-

0124, 1660-0125

Electronic 

Communications; 

Grants Management 

Integrated 

Environment (GMIE) 

System

FEMA‘s grant processes rely on multiple 

grant management systems and manual 

processes to perform grant management 

functions. FEMA is working to improve its 

grant processes and systems by pursuing the 

GMIE system initiative. FEMA has 

identified several grant programs that would 

be impacted by this initiative by enhancing 

the accuracy of the agency‘s burden on the 

public, while reducing the burden on small 

entities.

 This action could result in an 

estimated burden reduction of 2,860,526 

hours.

 The expected completion date of this 

initiative is December 2016.

This would consolidate the many 

different systems and manual processes that 

are currently being used and allow FEMA to 

collect grants electronically.

NPPD 6 CFR Part 27 Chemical Facility 

Anti-terrorism 

Standards

This regulation requires facilities possessing 

certain chemicals at threshold levels, as 

specified in Appendix A of the rule, to 

submit information to help DHS identify 

chemical facilities that pose potential high 

levels of security risks and to impose 

additional information and security 

requirements on high-risk facilities. Several 

commenters requested that DHS reconsider 

various provisions of the regulation, 

including Appendix A, including but not 

limited to, provisions applicable to research 

laboratories and universities, gasoline 

storage facilities, Liquefied Natural Gas 

facilities, and mixtures containing chemicals 

of interest.

 NPPD will evaluate these comments 

as it considers any updates to the current 

regulation and Appendix A.