Notice & Comment

DHS Seeks Public Input On Retrospective Review of Existing Regulations, by Shannon Allen

The Department of Homeland Security (“DHS”) seeks public comment on “specific existing significant DHS rules” that DHS should consider modifying, streamlining, expanding, or repealing.  This notice and request for comment is in response to Executive Order 13563 (“the Order”), “Improving Regulation and Regulatory Review.”  The Order aims to make regulatory programs “more effective or less burdensome in achieving . . . regulatory objectives.”  In addition, the Order requires “each Executive Branch agency” to generate a plan to “periodically review . . . existing regulations” to decide if any regulations should be “modified, streamlined, expanded, or repealed.”

The mission of DHS is to safeguard a homeland that is “safe, secure, and resilient against terrorism and other hazards.”  The DHS achieves its mission through the Office of the Secretary and 28 components including: U.S. Citizenship and Immigration Services, U.S. Coast Guard,  U.S. Customs and Border Protection, Federal Emergency Management Agency, U.S. Immigration and Customs Enforcement, U.S. Secret Service, and Transportation Security Administration.

DHS’s mission has five main areas of responsibility: prevent terrorism and enhance security; secure and manage our borders; enforce and administer our immigration laws; safeguard and secure cyberspace; and ensure resilience to disasters.

In addition, DHS is responsible for the regulation of: people and goods entering and exiting the United States in order to secure and manage our borders; aviation security, high-risk chemical facilities, and infrastructure protection in order to combat terrorism; administration of immigration and citizenship benefits as well as regulations covering maritime safety and environmental protection; and disaster preparedness, response, and recovery.

DHS’s current solicitation for public input is in accordance with its three-year retrospective review process cycle.  Public input will help DHS confirm that its regulations “contain necessary, properly tailored, and up-to-date requirements that effectively achieve regulatory objectives without imposing unwarranted costs.”  Public input is critical and essential to driving and focusing DHS’s retrospective review.  A nonexhaustive sample list of questions for commenters includes:

  1. Are there regulations that simply make no sense or have become unnecessary, ineffective, or ill advised and, if so, what are they? Are there regulations that can simply be repealed without impairing the Department’s regulatory programs and, if so, what are they?
  2. Are there regulations that have become outdated and, if so, how can they be modernized to better accomplish their regulatory objectives?
  3. Are there regulations that are still necessary, but have not operated as well as expected such that a modified, stronger, or slightly different approach is justified?
  4. Does the Department currently collect information that it does not need or effectively use to achieve regulatory objectives?
  5. Are there regulations that are unnecessarily complicated or could be streamlined to achieve regulatory objectives in more efficient ways? If so, how can they be streamlined and/or made less complicated?
  6. Are there regulations that have been overtaken by technological developments? Can new technologies be leveraged to modify, streamline, or do away with existing regulatory requirements?
  7. Are there any Departmental regulations that are not tailored to impose the least burden on society, consistent with achieving the regulatory objectives?
  8. How can the Department best obtain and consider accurate, objective information and data about the costs, burdens, and benefits of existing regulations? Are there existing sources of data the Department can use to evaluate the post-promulgation effects of regulations over time?
  9. Are there regulations that are working well that can be expanded or used as a model to fill gaps in other DHS regulatory programs?
  10. Are there any regulations that create difficulty because of duplication, overlap, or inconsistency of requirements?

The most helpful input will identify specific regulations and include actionable data supporting the nomination of specific regulations for retrospective review.  Commenters should provide, in as much detail as possible:

  • an explanation why a regulation should be modified, streamlined, expanded, or repealed;
  • pecific suggestions of ways the DHS can better achieve its regulatory objectives;
  • specific data that document the costs, burdens, and benefits of existing requirements;
  • how DHS can best obtain and consider accurate, objective information;
  • data about the costs, burdens, and benefits of existing regulations; and
  • whether there are existing sources of data that DHS can use to evaluate the post-promulgation effects of its regulations over time.

Interested parties are invited to comment (including the agency name and identified by docket number DHS-2014-0006) by March 28, 2014, by the following method:

Federal eRulemaking Portal: Follow the instructions for submitting comments.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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