DEPARTMENT OF HOMELAND SECURITY (DHS)

Fall 2016 Statement of Regulatory Priorities

The Department of Homeland Security (DHS or Department) was created in 2003 pursuant to the Homeland Security Act of 2002, Public Law 107-296. The DHS mission statement provides the following: "With honor and integrity, we will safeguard the American people, our homeland, and our values."

Fulfilling this mission requires the dedication of more than 225,000 employees in jobs that range from aviation and border security to emergency response, from cybersecurity analyst to chemical facility inspector. Our duties are wide-ranging, but our goal is clear-keeping America safe.

Leading a unified national effort, DHS has five core missions: (1) prevent terrorism and enhance security, (2) secure and manage our borders, (3) enforce and administer our immigration laws, (4) safeguard and secure cyberspace, and (5) ensure resilience to disasters. In addition, we must specifically focus on maturing and strengthening the homeland security enterprise itself.

In achieving these goals, we are continually strengthening our partnerships with communities, first responders, law enforcement, and Government agencies-at the State, local, tribal, Federal, and international levels. We are accelerating the deployment of science, technology, and innovation in order to make America more secure, and we are becoming leaner, smarter, and more efficient, ensuring that every security resource is used as effectively as possible. For a further discussion of our mission, see the DHS Web site at http://www.dhs.gov/our-mission.

The regulations we have summarized below in the Department's fall 2016 regulatory plan and agenda support the Department's responsibility areas. These regulations will improve the Department's ability to accomplish its mission. Also, the regulations we have identified in this year's regulatory plan continue to address legislative initiatives such as the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Public Law 110-53 (Aug. 3, 2007).

DHS strives for organizational excellence and uses a centralized and unified approach in managing its regulatory resources. The Office of the General Counsel manages the Department's regulatory program, including the agenda and regulatory plan. In addition, DHS senior leadership reviews each significant regulatory project to ensure that the project fosters and supports the Department's mission.

The Department is committed to ensuring that all of its regulatory initiatives are aligned with its guiding principles to protect civil rights and civil liberties, integrate our actions, build coalitions and partnerships, develop human resources, innovate, and be accountable to the American public.

DHS is also committed to the principles described in Executive Orders 13563 and 12866 (as amended). Both Executive orders direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

Finally, the Department values public involvement in the development of its regulatory plan, agenda, and regulations, and takes particular concern with the impact its regulations have on small businesses. DHS and its components continue to emphasize the use of plain language in our regulatory documents to promote a better understanding of regulations and to promote increased public participation in the Department's regulations.

Retrospective Review of Existing Regulations

Pursuant to Executive Order 13563 "Improving Regulation and Regulatory Review" (Jan. 18, 2011), DHS identified the following regulatory actions as associated with retrospective review and analysis. Some of the regulatory actions on the below list may be completed actions, which do not appear in the regulatory plan. You can find more information about these completed rulemakings in past publications of the agenda (search the Completed Actions sections) on www.reginfo.gov. Some of the entries on this list, however, are active rulemakings. You can find entries for these rulemakings on www.regulations.gov.

RIN

Rule

1615-AB95

Immigration Benefits Business Transformation, Increment II; Nonimmigrants Classes

1615-AC00

Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants

1615-AC03

Expansion of Provisional Unlawful Presence Waivers of Inadmissibility

1625-AB80

Revision to Transportation Worker Identification Credential (TWIC) Requirements for Mariners

1625-AC15

Seafarers' Access to Maritime Facilities

1651-AA96

Definition of Form I-94 to Include Electronic Format

1651-AB05

Freedom of Information Act (FOIA) Procedures

Promoting International Regulatory Cooperation

Pursuant to sections 3 and 4(b) of Executive Order 13609 "Promoting International Regulatory Cooperation" (May 1, 2012), DHS identified the following regulatory actions that have significant international impacts. Some of the regulatory actions on the below list may be completed actions. You can find more information about these completed rulemakings in past publications of the agenda (search the Completed Actions sections) on www.reginfo.gov. Some of the entries on this list, however, are active rulemakings. You can find entries for these rulemakings on www.regulations.gov.

RIN

Rule

1625-AB38

Updates to Maritime Security

1651-AA70

Importer Security Filing and Additional Carrier Requirements

1651-AA98

Amendments to Importer Security Filing and Additional Carrier Requirements

1651-AA96

Definition of Form I-94 to Include Electronic Format

DHS participates in some international regulatory cooperation activities that are reasonably anticipated to lead to significant regulations. For example, the U.S. Coast Guard is the primary U.S. representative to the International Maritime Organization (IMO) and plays a major leadership role in establishing international standards in the global maritime community. IMO's work to establish international standards for maritime safety, security, and environmental protection closely aligns with the U.S. Coast Guard regulations. As an IMO member nation, the U.S. is obliged to incorporate IMO treaty provisions not already part of U.S. domestic policy into regulations for those vessels affected by the international standards. Consequently, the U.S. Coast Guard initiates rulemakings to harmonize with IMO international standards such as treaty provisions and the codes, conventions, resolutions, and circulars that supplement them.

Also, President Obama and Prime Minister Harper created the Canada-U.S. Regulatory Cooperation Council (RCC) in February 2011. The RCC is an initiative between both Federal Governments aimed at pursuing greater alignment in regulation, increasing mutual recognition of regulatory practices and establishing smarter, more effective, and less burdensome regulations in specific sectors. The Canada-U.S. RCC initiative arose out of the recognition that high level, focused, and sustained effort would be required to reach a more substantive level of regulatory cooperation. Since its creation in early 2011, the U.S. Coast Guard has participated in stakeholder consultations with their Transport Canada counterparts and the public, drafted items for inclusion in the RCC Action Plan, and detailed work plans for each included Action Plan item.

The fall 2016 regulatory plan for DHS includes regulations from several DHS components, including U.S. Citizenship and Immigration Services (USCIS), the U.S. Coast Guard (Coast Guard), U.S. Customs and Border Protection (CBP), the U.S. Immigration and Customs Enforcement (ICE), the Federal Emergency Management Agency, the National Protection and Programs Directorate (NPPD), and the Transportation Security Administration (TSA). Below is a discussion of the regulations that comprise the DHS fall 2016 regulatory plan.

United States Citizenship and Immigration Services

U.S. Citizenship and Immigration Services (USCIS) administers immigration benefits and services while protecting and securing our homeland. USCIS has a strong commitment to welcoming individuals who seek entry through the U.S. immigration system, providing clear and useful information regarding the immigration process, promoting the values of citizenship, and assisting those in need of humanitarian protection. In the coming year, USCIS will promulgate several regulations that directly support these commitments and goals.

Regulations to Facilitate Innovation and Employment Creation

International Entrepreneurs. USCIS has proposed to establish a program that would allow for consideration of parole into the United States, on case-by-case basis, of certain inventors, researchers, and entrepreneurs who will establish a U.S. start-up entity, and who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research. Based on investment, job-creation, and other factors, the entrepreneur may be eligible for temporary parole. Upon reviewing the public comments received in response to the notice of proposed rulemaking (NPRM), USCIS will develop a final rule.

Employment Creation (EB-5) Immigrant Regulations DHS will propose to amend its regulations governing the employment-based, fifth preference (EB-5) immigrant investor category and EB-5 regional centers to modernize the EB-5 program based on current economic realities and to reflect statutory changes made to the program. DHS will propose to update the regulations to include the following areas: priority date retention, increases to the required investment amounts, revision of the Targeted Employment Area requirements, clarification of the regional center designation and continued program participation requirements, and further definition of grounds for terminating regional centers.

Improvements to the Immigration System

Requirements for Filing Motions and Administrative Appeals. USCIS will propose to revise the procedural regulations governing appeals and motions to reopen or reconsider before its Administrative Appeals Office. The rule will also propose to require that applicants and petitioners exhaust administrative remedies before seeking judicial review of an unfavorable decision. This rule will streamline the procedures before the Administrative Appeals Office and improve the efficiency of the adjudication process.

Regulatory Changes Involving Humanitarian Benefits

"T" and "U" Nonimmigrants. USCIS is working on regulatory initiatives related to T nonimmigrants (victims of trafficking) and U nonimmigrants (victims of criminal activity). Through these initiatives, USCIS hopes to provide greater consistency in eligibility, application, and procedural requirements for these vulnerable groups, their advocates, and the community. These regulations will contain provisions to adjust documentary requirements for this vulnerable population and provide greater clarity to the law enforcement community.

Special Immigrant Juvenile Petitions. This final rule makes procedural changes and resolves interpretive issues following the amendments mandated by Congress. It will enable child aliens who have been abused, neglected, or abandoned and placed under the jurisdiction of a juvenile court or placed with an individual or entity, to obtain classification as Special Immigrant Juvenile. Such classification can regularize immigration status for these aliens and allow for adjustment of status to lawful permanent resident.

United States Coast Guard

The U.S. Coast Guard (Coast Guard) is a military, multi-mission, maritime service of the United States and the only military organization within DHS. It is the principal Federal agency responsible for maritime safety, security, and stewardship and delivers daily value to the nation through multi-mission resources, authorities, and capabilities.

Effective governance in the maritime domain hinges upon an integrated approach to safety, security, and stewardship. The Coast Guard's policies and capabilities are integrated and interdependent, delivering results through a network of enduring partnerships. The Coast Guard's ability to field versatile capabilities and highly-trained personnel is one of the U.S. Government's most significant and important strengths in the maritime environment.

America is a maritime nation, and our security, resilience, and economic prosperity are intrinsically linked to the oceans. Safety, efficient waterways, and freedom of transit on the high seas are essential to our well-being. The Coast Guard is leaning forward, poised to meet the demands of the modern maritime environment. The Coast Guard creates value for the public through solid prevention and response efforts. Activities involving oversight and regulation, enforcement, maritime presence, and public and private partnership foster increased maritime safety, security, and stewardship.

The statutory responsibilities of the Coast Guard include ensuring marine safety and security, preserving maritime mobility, protecting the marine environment, enforcing U.S. laws and international treaties, and performing search and rescue. The Coast Guard supports the Department's overarching goals of mobilizing and organizing our Nation to secure the homeland from terrorist attacks, natural disasters, and other emergencies. The regulatory projects in this fall 2016 regulatory plan and in the agenda contribute to the fulfillment of those responsibilities.

Seafarers' Access to Maritime Facilities. This regulatory action is necessary to implement section 811 of the Coast Guard Authorization Act of 2010, which requires facility owners and operators to ensure shore access for seafarers and other individuals. This regulation applies to owners and operators of facilities regulated by the Coast Guard under the Maritime Transportation Safety Act of 2002. This regulation helps ensure that owners and operators provide seafarers assigned to vessels moored at the facility, pilots, and representatives of seamen's welfare and labor organizations with the ability to board and depart vessels to access the shore through the facility in a timely manner and at no cost to the seafarer.

Commercial Fishing Vessels -- Implementation of 2010 and 2012 Legislation. The Coast Guard is working to improve safety in the commercial fishing industry, which remains one of the most hazardous occupations in the United States. In 2016, the Coast Guard withdrew a rulemaking effort that had been superseded by statute, and instead proposed a rule to implement relevant mandatory provisions of the Coast Guard Authorization Act of 2010 and Coast Guard and Maritime Transportation Act of 2012. The proposed rule would add new requirements for safety equipment, vessel examinations, vessel safety standards, the documentation of maintenance, and the termination of unsafe operations. These requirements would affect an estimated 36,115 existing commercial fishing vessels. This rule is intended to reduce the risk of future fishing vessel casualties and, if a casualty does occur, to minimize the adverse impacts to crew and enable them to have the maximum opportunity to survive and to be rescued. he Coast Guard provided a public comment period of 180 days, ending in December 2016, and will consider all comments when developing the final rule.

United States Customs and Border Protection

U.S. Customs and Border Protection (CBP) is the Federal agency principally responsible for the security of our Nation's borders, both at and between the ports of entry and at official crossings into the United States. CBP must accomplish its border security and enforcement mission without stifling the flow of legitimate trade and travel. The primary mission of CBP is its homeland security mission, that is, to prevent terrorists and terrorist weapons from entering the United States. An important aspect of this priority mission involves improving security at our borders and ports of entry, but it also means extending our zone of security beyond our physical borders.

CBP is also responsible for administering laws concerning the importation into the United States of goods, and enforcing the laws concerning the entry of persons into the United States. This includes regulating and facilitating international trade; collecting import duties; enforcing U.S. trade, immigration and other laws of the United States at our borders; inspecting imports, overseeing the activities of persons and businesses engaged in importing; enforcing the laws concerning smuggling and trafficking in contraband; apprehending individuals attempting to enter the United States illegally; protecting our agriculture and economic interests from harmful pests and diseases; servicing all people, vehicles, and cargo entering the United States; maintaining export controls; and protecting U.S. businesses from theft of their intellectual property.

In carrying out its priority mission, CBP's goal is to facilitate the processing of legitimate trade and people efficiently without compromising security. Consistent with its primary mission of homeland security, CBP intends to issue several regulations during the next fiscal year that are intended to improve security at our borders and ports of entry. CBP is also automating some procedures that increase efficiencies and reduce the costs and burdens to travelers. We have highlighted two of these regulations below.

Air Cargo Advance Screening (ACAS). The Trade Act of 2002, as amended, authorizes the Secretary of Homeland Security to promulgate regulations providing for the transmission, through an electronic data interchange system, of information to CBP pertaining to cargo to be brought into the United States or to be sent from the United States prior to the arrival or departure of the cargo. The cargo information required is that which the Secretary determines to be reasonably necessary to ensure cargo safety and security. CBP's current Trade Act regulations pertaining to air cargo require the electronic submission of various advance data to CBP no later than either the time of departure of the aircraft for the United States (from specified locations) or four hours prior to arrival in the United States for all other locations. CBP intends to propose amendments to these regulations to implement the Air Cargo Advance Screening (ACAS) program. To improve CBP's risk assessment and targeting capabilities and to enable CBP to target, and identify, risky cargo prior to departure of the aircraft to the United States, ACAS would require the submission of certain of the advance electronic information for air cargo earlier in the process. In most cases, the information would have to be submitted as early as practicable but no later than prior to the loading of cargo onto an aircraft at the last foreign port of departure to the United States. CBP, in conjunction with TSA, has been operating ACAS as a voluntary pilot program since 2010 and intends to publish a notice of proposed rulemaking in the next fiscal year to implement ACAS as a regulatory program.

Definition of Form I-94 to Include Electronic Format. DHS issues the Form I-94 to certain aliens and uses the Form I-94 for various purposes such as documenting status in the United States, the approved length of stay, and departure. DHS generally issues the Form I-94 to aliens at the time they lawfully enter the United States. On March 27, 2013, CBP published an interim final rule amending existing regulations to add a new definition of the term "Form I-94." The new definition includes the collection of arrival/departure and admission or parole information by DHS, whether in paper or electronic format. The definition also clarified various terms that are associated with the use of the Form I-94 to accommodate an electronic version of the Form I-94. The rule also added a valid, unexpired nonimmigrant DHS admission or parole stamp in a foreign passport to the list of documents designated as evidence of alien registration. These revisions enabled DHS to transition to an automated process whereby DHS creates a Form I-94 in an electronic format based on passenger, passport and visa information that DHS obtains electronically from air and sea carriers and the Department of State as well as through the inspection process. CBP intends to publish a final rule during the next fiscal year.

In addition to the regulations that CBP issues to promote DHS's mission, CBP also issues regulations related to the mission of the Department of the Treasury. Under section 403(1) of the Homeland Security Act of 2002, the former-U.S. Customs Service, including functions of the Secretary of the Treasury relating thereto, transferred to the Secretary of Homeland Security. As part of the initial organization of DHS, the Customs Service inspection and trade functions were combined with the immigration and agricultural inspection functions and the Border Patrol and transferred into CBP. The Department of the Treasury retained certain regulatory authority of the U.S. Customs Service relating to customs revenue function (see the Department of the Treasury Regulatory Plan). In addition to its plans to continue issuing regulations to enhance border security, CBP, in the coming year, expects to continue to issue regulatory documents that will facilitate legitimate trade and implement trade benefit programs. For a discussion of CBP regulations regarding the customs revenue function, see the regulatory plan of the Department of the Treasury.

Federal Emergency Management Agency

The Federal Emergency Management Agency's (FEMA's) mission is to support our citizens and first responders to ensure that as a Nation we work together to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from and mitigate all hazards. FEMA's ethos is to serve the Nation by helping its people and first responders, especially when they are most in need. FEMA will promulgate several rulemakings to support its mission, one of which we highlight below.

Updates to Floodplain Management and Protection of Wetlands Regulations to Implement Executive Order 13690 and the Federal Flood Risk Management Standard (FFRMS). The rule proposes to amend existing FEMA regulations to implement Executive Order 13690, "Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input." FEMA is also proposing a supplementary policy that would further clarify how FEMA applies the FFRMS. FEMA published a notice of proposed rulemaking on August 22, 2016 and will work on finalizing that rule in the coming fiscal year.

Federal Law Enforcement Training Center

The Federal Law Enforcement Training Center (FLETC) does not have any significant regulatory actions planned for fiscal year 2017.

United States Immigration and Customs Enforcement

U.S. Immigration and Customs Enforcement (ICE) is the principal criminal investigative arm of DHS and one of the three Department components charged with the civil enforcement of the Nation's immigration laws. Its primary mission is to protect national security, public safety, and the integrity of our borders through the criminal and civil enforcement of Federal law governing border control, customs, trade, and immigration. During the coming year, ICE will focus its rulemaking efforts on increasing security in the area of student and exchange visitor programs.

Eligibility Checks of Nominated and Current Designated School Officials of Schools That Enroll F and M Nonimmigrant Students and of Exchange Visitor Program-Designated Sponsors of J Nonimmigrants.

DHS will issue a rule proposing to strengthen the mechanism for approving user access to one of its data‑management systems, the Student and Exchange Visitor Information System (SEVIS). DHS and the Department of State, rely on principal designated school officials, designated school officials, responsible officers, and alternate responsible officers (collectively, P/DSOs, DSOs and ROs/AROs) as key links in the process to mitigate potential threats to national security and to ensure compliance with immigration law by aliens admitted into the United States in F, J, or M nonimmigrant status. Through this rule, DHS would require that anyone nominated to serve as a P/DSO, DSO, or RO/ARO receive a favorable SEVIS Access Approval Process assessment prior to their appointment and subsequent approval for access to SEVIS. The primary benefit of this rule would be to reduce the potential for fraud.

National Protection and Programs Directorate

The National Protection and Programs Directorate's (NPPD) vision is a safe, secure, and resilient infrastructure where the American way of life can thrive. NPPD leads the national effort to protect and enhance the resilience of the Nation's physical and cyber infrastructure.

Chemical Facility Anti-Terrorism Standards. Recognizing both the importance of the Nation's chemical facilities to the American way of life and the need to secure high-risk chemical facilities against terrorist attacks, in December 2014 Congress passed, and the President signed into law, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014, Pub. L. 113-254. This legislation provides the Department continuing authority to implement the Chemical Facility Anti-Terrorism Standards (CFATS) regulatory program, a program mandating that high-risk chemical facilities in the United States develop and implement security plans satisfying risk-based performance standards established by DHS.

The CFATS regulations have been in effect since 2007. On August 18, 2014, the Department published an advance notice of proposed rulemaking (ANPRM) seeking public comment on ways to make the program more effective. The Department will continue this rulemaking effort and intends to publish a notice of proposed rulemaking (NPRM). The NPRM will propose modifications to CFATS based on the public comments received in response to the ANPRM and on program implementation experience. The NPRM will also propose modifications to CFATS in order to align the existing regulation with the requirements of the 2014 legislation. Through the rule, NPPD seeks to harmonize the regulation with its statutory authority and to make the CFATS program more efficient and effective.

Transportation Security Administration

The Transportation Security Administration (TSA) protects the Nation's transportation systems to ensure freedom of movement for people and commerce. TSA is committed to continuously setting the standard for excellence in transportation security through its people, processes, and technology as we work to meet the immediate and long-term needs of the transportation sector.

For the coming fiscal year, TSA is prioritizing regulations related to requirements for surface transportation included in the 9/11 Act. These rulemakings will include the following ones:

Security Training for Surface Transportation Employees. TSA will propose regulations requiring higher-risk public transportation agencies (including rail mass transit and bus systems), railroad carriers (freight and passenger), and over-the-road bus (OTRB) owner/operators to conduct security training for frontline employees. This regulation will implement sections 1408 (public transportation), 1517 (railroads), and 1531(e) and 1534 (OTRBs) of the 9/11 Act. In compliance with the definitions of frontline employees in the pertinent provisions of the 9/11 Act, the notice of proposed rulemaking (NPRM) will include identification of which employees are required to receive security training and the content of that training. The NPRM will also propose definitions for transportation security-sensitive materials, as required by section 1501 of the 9/11 Act.

Surface Transportation Vulnerability Assessments and Security Plans. TSA will publish an advance notice of proposed rulemaking (ANPRM) regarding a future rulemaking that will propose requiring higher-risk public transportation agencies (including rail mass transit and bus systems), railroads (freight and passenger), and OTRB owner/operators to conduct vulnerability assessments and develop/implement security plans. This regulation will propose to implement sections 1405 (public transportation), 1512 (railroads), and 1531 (OTRBs) of the 9/11 Act.

Vetting of Certain Surface Transportation Employees. TSA will propose regulations requiring security threat assessments for security coordinators and other frontline employees of certain public transportation agencies (including rail mass transit and bus systems), railroads (freight and passenger), and OTRB owner/operators. The NPRM will also include proposed provisions to implement TSA's statutory requirement to recover its cost of vetting through user fees. This regulation will implement sections 1414 (public transportation), 1522 (railroads), and 1531(e)(2) (over-the-road buses) of the 9/11 Act.

United States Secret Service

The United States Secret Service does not have any significant regulatory actions planned for fiscal year 2017.

DHS Regulatory Plan for Fiscal Year 2017

A more detailed description of the priority regulations that comprise the DHS fall regulatory plan follows.