Regulatory Flexibility Act Plan for the Periodic Review of Rules

DEPARTMENT OF JUSTICE

8 CFR Ch. I, 21 CFR Ch. II, 28 CFR Ch. I

Regulatory Flexibility Act Plan for the Periodic Review of Rules

AGENCY: Department of Justice.

ACTION: Notice of regulatory review.

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SUMMARY: In accordance with the requirements of section 610(a) of the

Regulatory Flexibility Act, the Department of Justice is publishing

this revised Regulatory Flexibility Act Review Plan. The Act provides

for agencies to conduct a periodic review of rules having a significant

economic impact on a substantial number of small entities. This plan

supersedes the prior Review Plan published by the Department.

FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel,

Office of Policy Development, Department of Justice, Room 4258, Main

Building, 950 Pennsylvania Avenue, NW., Washington, DC 20530, telephone

(202) 514-8059.

SUPPLEMENTARY INFORMATION:

What Does Section 610 of the Regulatory Flexibility Act Require?

Section 610(a) of the Regulatory Flexibility Act, 5 U.S.C. 610(a),

requires that each agency publish in the Federal Register a plan for

the periodic review of the rules issued by that agency which have a

significant economic impact on a substantial number of small entities.

Section 610(a) required each agency to conduct its review within ten

years with respect to rules in effect when the Regulatory Flexibility

Act was enacted, or within ten years after promulgation with respect to

rules adopted since then, if the rules meet the standard for review

under section 610(a). The purpose of this review is to determine

whether such rules should be continued without change, or should be

amended or rescinded, consistent with the stated objectives of

applicable statutes, to minimize any significant economic impact of the

rules on a substantial number of small entities.

What Has the Department Done Pursuant to Section 610?

Pursuant to section 610, the Department of Justice published an

initial Regulatory Flexibility Act Plan for the Periodic Review of

Rules in the Federal Register on November 28, 1984 at 49 FR 46820.

This initial Department of Justice Review Plan, however,

inadvertently contained a list of all regulations of the Department

existing at that time (other than the organizational rules in 28 CFR

part 0) without regard to whether the rules listed in the plan met the

test for review under section 610, i.e., having a ``significant

economic impact on a substantial number of small entities.''

The only rule in effect at the time of enactment of the Regulatory

Flexibility Act that would have had a significant impact on a

substantial number of small entities was the Drug Enforcement

Administration (DEA) diversion control regulation for controlled

substances. As discussed below, the DEA conducted a comprehensive

rulemaking proceeding and revised its existing regulation in response

to public comments several years ago.

Section 610(a) also provides that a review plan may be amended at

any time by the agency publishing a revision in the Federal Register.

Accordingly, by this Notice the Department of Justice is amending its

Regulatory Flexibility Act Review Plan.

What Other Reviews of Its Rules Has the Department Undertaken?

Subsequent to publication of the initial Review Plan, the

Department's regulatory components conducted thorough reviews of their

rules, both in 1992 and as part of President Clinton's Regulatory

Reinvention Initiative in 1995.

During the 1995 initiative, each regulatory component reviewed

their existing rules and identified those regulatory provisions that

required reinvention or elimination. This wide-ranging reinvention

effort examined all of the Department's regulations, not merely those

few rules that fall within the statutory scope of section 610. As a

result of that review process, many of the Department's regulatory

components have eliminated unnecessary regulations and reinvented other

provisions to carry out the Department's goals during the Regulatory

Reinvention Initiative. The Department's entries in past issues of the

semi-annual Unified Agenda of Federal Regulatory and Deregulatory

Actions identify the Department's reinvention initiatives.

For example, though DEA did not specifically publish a separate

notice under section 610(c), it did engage in a full notice-and-comment

rulemaking in 1996 and 1997, as part of the President's Regulatory

Reinvention initiative, resulting in a substantial revision and

clarification of its entire diversion control regulations pertaining to

controlled substances and listed chemicals. The DEA Final Rule was

published at 62 FR 13938 (March 24, 1997).

In addition, as discussed below, the Immigration and Naturalization

Service (INS) has proposed a comprehensive rewriting of its regulations

concerning the employment verification process and the use of the Form

I-9, which have been a source of public confusion and dissatisfaction

in the past.

What Regulations of the Department Are Still Subject To Review

Under the Ten-Year Review Requirement?

No further actions under section 610 are necessary with respect to

the Department's regulations that were in effect at the time the

Regulatory Flexibility Act was enacted. Based upon a review of the

Department's regulations adopted since the enactment of the Regulatory

Flexibility Act, the following final rules may have a ``significant

economic impact upon a substantial number of small entities'':

The Immigration and Naturalization Services (INS)

employment authorization and employer sanctions rules implementing the

Immigration Reform and Control ACt (IRCA), 8 CFR part 274a (published

at 52 FR 16216, May 1, 1987);

The Civil Rights Division's anti-discrimination rules

under Title III of the Americans with Disabilities Act (ADA) with

respect to commercial facilities, 28 CFR part 36 (published at 56 FR

35592, July 26, 1991);

The DEA rules implementing the Domestic Chemical Diversion

Control Act of 1993 (DCDCA), 21 CFR part 1309 (published at 60 FR

32447, June 22, 1995); and

The Federal Bureau of Investigation (FBI) rules

implementing section 109 of

[[Page 54795]]

the Communications Assistance for Law Enforcement Act (CALEA), 28 CFR

part 100 (published at 62 FR 13307, March 20, 1997).

As such, these rules are appropriately the subject of the periodic

review under section 610(a), within ten years of the publication of the

Final Rule.

The INS has already conducted the review required by section 610

with respect to 8 CFR part 274a, ``Control of Employment of Aliens,''

in conjunction with a comprehensive restructuring of that rule. The INS

Notice of Proposed Rulemaking, which was published on February 2, 1998,

at 63 FR 5287, would completely rewrite and clarify the regulations

according to Plain Language principles; would amend the existing

standards to reduce instances of fraud or confusion in the employment

verification process; and would implement amendments made by the

Illegal Immigration and Immigration Reform Act (IIRIRA), Pub. L. 104-

208, Division C. The proposed rule also announced the section 610

review. Once a Final Rule is published, the section 610 review of these

regulations will be complete.

Accordingly, the schedule for periodic review of regulations of the

Department of Justice, as required by section 610(a) of the Regulatory

Flexibility Act, is as follows:

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Regulation Year scheduled for review

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8 CFR part 274a, Control of Employment of Pending (proposed rule

Aliens (INS). published in 1998).

28 CFR part 36, Title III of the Americans 2000.

with Disabilities Act (ADA) with respect

to commercial facilities (Civil Rights

Division).

21 CFR part 1309, Domestic Chemical 2004.

Diversion Control Act of 1993 (DEA).

28 CFR part 100, Section 109 of the 2006.

Communications Assistance for Law

Enforcement Act (FBI).

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Dated: August 12, 1999.

Eleanor D. Acheson,

Assistant Attorney General, Office of Policy Development.

[FR Doc. 99-26109 Filed 10-7-99; 8:45 am]

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