DEPARTMENT OF JUSTICE (DOJ) -- FALL 2017

Statement of Regulatory Priorities

The solemn duty of the Department of Justice is to uphold the Constitution and laws of the United States so that all Americans can live in peace and security. As the chief law enforcement agency of the United States government, the Department of Justice's most fundamental mission is to protect people by enforcing the rule of law. To fulfill this mission, the Department is devoting the resources necessary and utilizing the legal authorities available to combat violent crime and terrorism, prosecute drug offenses, and enforce immigration laws. Because the Department of Justice is primarily a law enforcement agency and not a regulatory agency, it carries out its principal investigative, prosecutorial, and other enforcement activities through means other than the regulatory process.

This year, the Department of Justice has substantially revised and improved its procedures for evaluating new regulatory actions and analyzing the costs that would be imposed. Executive Order 13771 (EO 13771), titled "Reducing Regulation and Controlling Regulatory Costs," 82 Fed. Reg. 9339 (Feb. 3, 2017), requires an agency, unless prohibited by law, to identify two existing regulations to be repealed when the agency publicly proposes for notice and comment or otherwise promulgates a new regulation. In furtherance of this requirement, section 2(c) of EO 13771 requires the new incremental costs associated with new regulations, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. Section 3(a) states that starting with fiscal year 2018, "the head of each agency shall identify, for each regulation that increases incremental cost, the offsetting regulations described in section 2(c) of [EO 13771], and provide the agency's best approximation of the totals costs or savings associated with each new regulation or repealed regulation."

The Department does not anticipate publishing any new significant Regulatory actions during fiscal year 2018 that would impose additional costs or burdens. Accordingly, none of the Department's anticipated fiscal year 2018 rulemaking actions would be subject to the two-for-one offset requirements of EO 13771. Instead, the Department has identified five Deregulatory actions (RIN 1117-AB42; RIN 1117-AB44; RIN 1117-AB46; RIN 1121-AA85; and RIN 1125-AA25), along with one revision to an information collection, expected to be finalized during fiscal year 2018, The Department and its regulatory components also are already reviewing other possible regulatory changes to reduce regulatory burdens and to streamline existing regulations, though those initiatives are not expected to be promulgated in final form during fiscal year 2018.

In addition to the new cost analyses being conducted pursuant to EO 13771, the Department is actively carrying out the provisions of EO 13777, "Enforcing the Regulatory Reform Agenda," 82 Fed. Reg. 12285 (Mar. 1, 2017). The Department's Regulatory Reform Task Force, chaired by Associate Attorney General Rachel Brand, is actively working to evaluate existing Department regulatory actions and to make recommendations regarding their repeal, replacement, or modification in order to reduce unnecessary burdens. The Task Force published a public notice in the Federal Register on June 28, 2017, to solicit comments on this goal and received over 30 recommendations that are under consideration.

The regulatory priorities of the Department include initiatives in the areas of federal grant programs, criminal law enforcement, immigration, and civil rights. These initiatives are summarized below. In addition, several other components of the Department carry out important responsibilities through the regulatory process. Although their regulatory efforts are not separately discussed in this overview of the regulatory priorities, those components have key roles in implementing the Department's anti-terrorism and law enforcement priorities.

Office of Justice Programs (OJP)

OJP provides innovative leadership to federal, state, local, and tribal justice systems; by disseminating state-of-the-art knowledge and practices; and providing financial assistance for the implementation of crime fighting strategies. OJP, through the Public Safety Officers' Benefits (PSOB) Program, supports public safety officers by providing financial assistance to eligible officers who sustain qualifying line-of-duty injuries, and to the eligible survivors of officers killed in the line of duty. The program also provides educational assistance to certain survivors of public safety officers.

In fiscal year 2018, OJP will promulgate a significant final rule amending and updating the regulations implementing the Public Safety Officers Benefits (PSOB) Program (RIN 1121-AA85). This rule will finalize two proposed rules to update and improve the OJP regulations implementing the PSOB Program, in order to incorporate several statutory changes enacted in recent years, and improve the efficiency of the PSOB Program claims process.

The final rule makes conforming changes required by the Dale Long Public Safety Officers' Benefits Improvement Act of 2012 pertaining, among other things, to members of a rescue squad or ambulance crew engaging in rescue activity or in the provision of emergency medical services. That Act also amended provisions relating to cases involving certain medical conditions and the payment offset scheme for the PSOB Program relative to the September 11th Victim Compensation Fund Program. The final rule also makes changes in response to perceived ambiguities and gaps in existing regulations, as well as opportunities to simplify and improve the program's administration - for example, making explicit the agency's authority to prescribe an online claim filing system, creating a process to facilitate the interaction between evidence gathering and claim processing, simplifying the process for claimant representatives to seek fees for their services, and updating various definitions. These changes are responsive to the public comments on the proposed rules as well as recommendations from an OIG Audit finalized in July 2015, and other internal reviews that identified the need to streamline the claims review process to reduce delays and increase transparency.

In addition to the PSOB final rule, OJP will continue to review its existing regulations to streamline them, where possible. OJP is drafting the final rule for the OJJDP Formula Grant Program, for which OJP published a partial final rule in in early 2017. OJP anticipates that the final OJJDP Formula Grant Program rule would finalize certain substantive aspects of the proposed rule, and also streamline and improve the existing regulation by providing or revising definitions for clarity, and by deleting text that unnecessarily repeats statutory provisions, has been rendered obsolete by statutory changes, or that addresses matters already (or better) addressed in other places (e.g., other rules or the program solicitation).

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)

ATF issues regulations to enforce the Federal laws relating to the manufacture and commerce of firearms and explosives. ATF's mission and regulations are designed, among other objectives, (1) to curb illegal traffic in, and criminal use of, firearms and explosives, and (2) to assist State, local, and other Federal law enforcement agencies in reducing crime and violence. ATF will continue, as a priority during fiscal year 2018, to seek modifications to its regulations governing commerce in firearms and explosives to fulfill these objectives.

Among other regulatory reviews and initiatives, ATF plans to update its regulations requiring notification of stored explosive materials to require annual reporting (RIN 1140-AA51). This regulatory action is intended to increase safety for emergency first responders and the public.

ATF plans to issue regulations to finalize the current interim rules implementing the provisions of the Safe Explosives Act (RIN 1140-AA00). The Department is also planning to finalize a proposed rule to codify regulations (27 CFR part 771) governing the procedure and practice for proposed denial of applications for explosives licenses or permits and proposed revocation of such licenses and permits (RIN 1140-AA38). As proposed, this rule is a regulatory action that clarifies the administrative hearing processes for explosives licenses and permits. This rule promotes open government and disclosure of ATF's procedures and practices for administrative actions involving explosive licensees or permittees.

ATF also has begun a rulemaking process that amends 27 CFR part 447 to update the terminology in the ATF regulations based on similar terminology amendments made by the Department of State on the U.S. Munitions List in the International Traffic in Arms Regulations, and the Department of Commerce on the Commerce Control List in the Export Administration Regulations (RIN 1140-AA49).

Drug Enforcement Administration (DEA)

DEA is the primary agency responsible for coordinating the drug law enforcement activities of the United States and also assists in the implementation of the President's National Drug Control Strategy. DEA implements and enforces titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and the Controlled Substances Import and Export Act (21 U.S.C. 801-971), as amended, collectively referred to as the Controlled Substances Act (CSA). DEA's mission is to enforce the CSA and its regulations and bring to the criminal and civil justice system those organizations and individuals involved in the growing, manufacture, or distribution of controlled substances and listed chemicals appearing in or destined for illicit traffic in the United States. The CSA and its implementing regulations are designed to prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while providing for the legitimate medical, scientific, research, and industrial needs of the United States.

Pursuant to its statutory authority, DEA continuously evaluates new and emerging substances to determine whether such substances should be controlled under the CSA. During fiscal year 2018, in addition to initiating temporary scheduling actions to prevent imminent hazard to public safety, DEA will also consider petitions to control or reschedule various substances. Among other regulatory reviews and initiatives, DEA plans to update its regulations to implement provisions of the Comprehensive Addiction and Recovery Act of 2016 (RIN 1117-AB42) relating to the dispensing of narcotic drugs for the purpose of maintenance or detoxification treatment.

In fiscal year 2018, DEA anticipates issuing no Regulatory actions that impose additional costs. Rather, DEA plans to publish four Deregulatory actions (RIN 1117-AB42; RIN 1117-AB43; RIN 1117-AB44; and RIN 1117-AB46). These deregulatory actions do not include non-rulemaking items, such as agency guidance and information collections, which do not appear in the Unified Agenda. Consistent with EO 13771 and EO 13777, DEA anticipates reviewing existing regulations to identify those that are outdated, unnecessary, or ineffective. DEA will solicit public comments during such reviews, as appropriate, to engage with the affected DEA registrant community and members of the public.

Bureau of Prisons (BOP)

BOP issues regulations to enforce the Federal laws relating to its mission of protecting society by confining offenders in the controlled environments of prisons and community-based facilities that are safe, humane, cost-efficient, and appropriately secure, and that provide work and other self-improvement opportunities to assist offenders in becoming law-abiding citizens. During the next 12 months, BOP will continue its ongoing efforts to develop regulatory actions aimed at: (1) streamlining regulations, eliminating unnecessary language and improving readability; (2) improving inmate disciplinary procedures and sanctions, improving safety in facilities through the use of less-than-lethal force instead of traditional weapons; and (3) providing effective literacy programming which serves both general and specialized inmate needs.

Executive Office for Immigration Review (EOIR)

EOIR's primary mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation's immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. The immigration judges adjudicate approximately 180,000 cases each year to determine whether aliens should be ordered removed from the United States or should be granted some form of relief or protection from removal. The Board of Immigration Appeals (Board) has jurisdiction over appeals from the decisions of immigration judges, as well as other matters. Accordingly, the Attorney General has a continued role in the conduct of immigration proceedings, including removal proceedings and custody determinations regarding the detention of aliens pending completion of removal proceedings. The Attorney General also is responsible for civil litigation and criminal prosecutions relating to the immigration laws.

In several pending rulemaking actions, the Department is working to revise and update the regulations relating to immigration proceedings in order to increase efficiencies and productivity, while also safeguarding due process. In particular, EOIR is planning to publish a final regulation to significantly reduce the current backlog of immigration cases, by amending the regulations governing the statutory annual limitation on cancellation of removal and suspension of deportation decisions to allow immigration judges and the Board to issue denials after the annual 4,000-grant statutory cap is reached, instead of the current regulatory requirement to reserve all decisions irrespective of the outcome (RIN 1125-AA25). EOIR is further working to finalize a jurisdiction and venue rule that will provide clarification regarding an immigration judge's authority to conduct proceedings, how venue is determined, and what circuit court law applies (RIN 1125-AA52). In particular, EOIR is developing mechanisms in this rule intended to streamline certain venue changes to achieve cost savings to the agency and increase due process to the parties. In addition, in response to Executive Order 13563, the Department is retrospectively reviewing EOIR's regulations to eliminate regulations that unnecessarily duplicate DHS's regulations and update outdated references to the pre-2003 immigration system (RIN 1125-AA71). As part of that review, EOIR also intends to revise a number of existing regulations, where needed, in response to Executive Order 13768 to ensure the faithful and efficient execution of the immigration laws of the United States.

EOIR is working on long-term plans to revise a number of existing regulations, as it moves forward with the next phases of its electronic case access and filing system to provide for the option of electronic submission of information, when practicable, as a substitute for paper. In 2013, EOIR published a final rule, Registry for Attorneys and Representatives (RIN 1125-AA39), establishing an electronic registration process for attorneys and accredited representatives practicing before immigration judges and the Board. That rule was the initial step in a multi-year, multi-phased initiative to make the transition to an electronic case access and filing system within EOIR. This endeavor is intended to comply with the Government Paperwork Elimination Act, Pub. L. 105-277 ("GPEA"), and the E‑Government Act of 2002, Pub. L. 107-347, Dec. 17, 2002 ("E-Gov"), to achieve the Department's vision for improved immigration adjudication processing and to meet the public expectations for electronic government. The GPEA provides that, when practicable, Federal agencies will provide for the electronic submission of information. The E-Gov is intended to enhance OMB's management and promotion of electronic government services and processes utilizing a broad framework of measures that require, amongst a number of initiatives, the use of internet-based and emerging information technologies to enhance citizen participating and access to Government information and services. EOIR anticipates considerable cost savings from the further expansion of its electronic filing systems including, but not limited to, the elimination of costs for managing and storing paper records; eliminating storage space; improving internal efficiencies and response times both internally and to the public through workflow automation and cutting labor expenses (time for printing, copying, filing, and document research using unsearchable paper); and lowering equipment expenses by reducing the need for printers and fax machines, and added maintenance cost.

Civil Rights (CRT)

CRT issues regulations to enforce Federal laws relating to discrimination in employment-related immigration practices, the coordination of enforcement of non-discrimination in federally assisted programs, and Federal laws relating to disability discrimination.

The Department is reviewing its regulatory priorities and associated agenda pursuant to the regulatory reform provisions of Executive Orders 13771 and 13777. As the Department continues to review its regulatory priorities, CRT does not plan to promulgate any new regulations in the areas outlined above over the next 12 months. The Department is withdrawing four CRT rulemakings that were previously designated as Inactive: (1) Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of Public Accommodations (RIN 1190-AA61); (2) Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government (RIN 1190‑AA65); (3) Nondiscrimination on the Basis of Disability by State and Local Governments and Public Accommodations: Accessibility of Medical Equipment and Furniture (RIN 1190‑AA66); and (4) Nondiscrimination on the Basis of Disability in State and Local Government Services; Next Generation 9-1-1 (RIN 1190-AA62).

Pursuant to the regulatory reform provisions of Executive Orders 13771 and 13777, CRT is undertaking an independent review of its guidance documents to determine whether any of those documents may be outdated, inconsistent, or duplicative. CRT is also reviewing comments relevant to its work that were submitted in response to a Notice published in the Federal Register by the Department's Regulatory Reform Task Force on June 28, 2017.

In addition, CRT plans to initiate a retrospective review of its existing regulations implementing titles II and III of the Americans with Disabilities Act (ADA). Accordingly, as part of the Department's effort to implement Executive Orders 13777 and 13771, the Department plans to issue a Notice titled Nondiscrimination on the Basis of Disability; Review of Existing Regulations Implementing the Americans with Disabilities Act (ADA) and the ADA Standards for Accessible Design. This Notice will request public comment and information to help the Department identify any portions of the existing title II and title III ADA regulations and the ADA Standards for Accessible Design that, for example, may be outdated, unnecessary, ineffective, or excessively burdensome. The Department expects to publish the Notice during Fiscal Year 2018.