Regulatory “Look Back” in Practice: Deployment of the Single Window, by Jeff Weiss
As the Obama Administration moves into the final stretch of establishing a “Single Window” – an electronic portal through which traders can transmit data required by U.S. agencies for importing and exporting goods — it is worth discussing the pivotal role being played in the Single Window roll-out by retrospective review.
The Administration’s retrospective review policy for regulation is set out in Executive Orders 13563 (Improving Regulation and Regulatory Review, January 2011) and 13610 (Identifying and Reducing Regulatory Burdens, May 2012). Under the “look back” policy, agencies must periodically review their significant rules to determine whether any should be “modified, streamlined, expanded or repealed” so as to increase their effectiveness or reduce burden. Agencies are asked to prioritize initiatives that would “produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens while protecting public health, welfare, safety, and our environment,” and reduce burdens on small business, including cumulative burdens.
An exciting application of the Administration’s “look back” policy – implementation of the Single Window — is proceeding in a quiet, albeit impressive, manner.
In recognition of the potential cost savings and operational efficiencies of single window systems, the member countries of the World Trade Organization (WTO) negotiated Article 10.4 of the WTO Agreement on Trade Facilitation. That article encourages WTO Members to:
“establish or maintain a single window, enabling traders to submit documentation and/or data requirements for importation, exportation or transit of goods through a single entry point to the participating authorities or agencies. After the examination by the participating authorities or agencies of the documentation and/or data, the results shall be notified to the applicants through the single window in a timely manner. [Article 10.4.1]
4.2 In cases where documentation and/or data requirements have already been received through the single window, the same documentation and/or data requirements shall not be requested by participating authorities or agencies except in urgent circumstances and other limited exceptions which are made public…
4.4 Members shall, to the extent possible and practical, use information technology to support the single window.”
Executive Order 13659 (Streamlining the Export/Import Process for America’s Businesses, February 2014) requires that the United States implement its Single Window by December 2016. When fully deployed, consistent with the intent of Article 10.4, the U.S. Single Window will enable traders to submit to the federal government all required import and export data for specific transactions through a single electronic portal. The portal, which is being built by U.S. Customs and Border Protection, will connect with the electronic systems of all U.S. agencies with border management authorities and data dissemination responsibilities, enabling traders to make one data submission and receive one expedited response. Paper will be predominantly replaced with electronic filing, and redundant data requirements will be eliminated.
A significant percentage of the paper forms that need to be migrated to electronic format to enable the Single Window to become a reality are currently required to be in paper by regulation. As part of the implementation of Executive Order 13659, in November 2014 the Office of Information and Regulatory Affairs asked agencies to: (1) identify instances where switching from paper forms to electronic data submission may not be permissible, feasible, or cost-effective, and (2) if not possible to switch to electronic submission, provide a justification for continuing to collect import/export data through paper collection, while setting a high bar for retaining paperwork requirements. As a result of the Single Window look back and agency administrative changes, streamlined electronic filing options for over three hundred forms will be made available and, wherever possible, required data elements are being scaled back and consolidated.
Because over $4 trillion worth of goods move across U.S. borders each year, implementing this Executive Order and developing a Single Window will lead to a massive reduction in paperwork and associated burdens. This paperwork burden reduction is anticipated to yield significant benefits to the U.S. economy and, through significant cost and paperwork savings, to agencies and traders, most significantly small enterprises. The trade facilitation benefits of the Single Window will also improve supply chain performance, making U.S. exports more price-competitive and improving on-time delivery to foreign buyers. With supply chains becoming increasingly global, ensuring more border crossings than ever before, Single Window deployment could even provide an additional incentive for companies to increase their manufacturing activities in the United States.
In addition to increasing efficiency at the border and in supply chains, the Single Window will also improve system effectiveness. Switching from paper to electronic data entry means that agencies will be able to use automated systems for processing each transaction in real time, reducing clearance for most goods to a matter of seconds, with many issues being conveyed to the trader instantaneously so that it can make the necessary corrections. The government will also be able to aggregate data, identify trends in possible evasion (e.g., of anti-dumping and countervailing duties), fraud (e.g., misclassification of seafood, electronics, and apparel), or other types of non-compliance, and take additional and timely enforcement actions. By enabling smarter risk-targeting of potentially non-compliant entries for further inspection, less cargo will be stopped at the border, and yet agencies will be more effective at identifying and removing problematic shipments before they enter the U.S. marketplace.
Once the U.S. Single Window is operational, the federal government will track key performance metrics — continually looking for ways to improve system efficiency and effectiveness, including through retrospective review — and work with important trading partners as they build their single windows to ensure that those systems are compatible with ours.
The Single Window experience demonstrates that taking a whole-of-government, centrally-coordinated approach to regulatory look back can improve the ability of agencies to protect health, safety, security, and the environment. It can also facilitate identification of increased efficiencies, in the form of meaningful reductions in costs to agencies and cumulative burdens on suppliers, especially small businesses. The success of the Single Window process suggests that future administrations should consider the use of retrospective review to help address policy challenges involving multiple agencies in a coordinated fashion.
Jeff Weiss is Senior Advisor for Standards and Global Regulatory Policy to U.S. Secretary of Commerce Penny Pritzker. He is also co-chair of the International Trade and Customs Committee of the ABA’s Section on Administrative Law and Regulatory Practice, chair of the External Engagement Committee of the Border Interagency Executive Council, and former Associate Administrator of OIRA.