Cite as "AILA InfoNet Doc. No. 11031468 (posted Mar. 14, 2011)"
[Federal Register: March 14, 2011 (Volume 76, Number 49)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
DEPARTMENT OF HOMELAND SECURITY
6 CFR Chapter I
8 CFR Chapter I
19 CFR Chapter I
33 CFR Chapter I
44 CFR Chapter I
46 CFR Chapters I and III
49 CFR Chapter XII
[Docket No. DHS-2011-0015]
Reducing Regulatory Burden; Retrospective Review Under Executive
AGENCY: Office of the General Counsel, DHS.
ACTION: Notice and request for comments.
SUMMARY: Pursuant to Executive Order 13563, ``Improving Regulation and
Regulatory Review,'' issued by the President on January 18, 2011, the
Department of Homeland Security (Department or DHS) must develop a
preliminary plan to facilitate the review of existing DHS significant
regulations through the use of retrospective analyses. The preliminary
plan will include criteria for identifying existing DHS significant
rules that might be modified, streamlined, expanded, or repealed, so as
to make DHS's regulatory program more effective or less burdensome in
achieving its regulatory objectives. The Department is soliciting views
from the public on how best to develop its preliminary plan. The
Department is also seeking views from the public on specific existing
significant DHS rules that the Department should consider as candidates
for modification, streamlining, expansion, or repeal. These efforts
will help DHS ensure that its regulations contain necessary, properly
tailored, and up-to-date requirements that effectively achieve
regulatory objectives without imposing unwarranted costs.
DATES: Written comments and information are requested on or before
April 13, 2011. Late-filed comments will be considered to the extent
ADDRESSES: You may submit comments, identified by docket number DHS-
2011-0015, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: Regulatory.Review@dhs.gov. Include ``DHS
Retrospective Review'' in the subject line of the message.
IdeaScale: IdeaScale is a Web-based platform that allows
users to actively share information and expertise in a collaborative
manner. IdeaScale allows commenters to submit ideas, discuss and refine
others' ideas, and vote on each others' ideas. To submit comments or
engage in dialogue via IdeaScale, go to the feedback community link at
http:// DHSretrospectivereview.ideascale.com. In order to participate,
you will have to obtain a log-in. You have two options: (1) You may
register and obtain a log-in on IdeaScale using a verifiable e-mail
address, or (2) You can use the OpenID feature, which allows you to
log-in on IdeaScale and participate using an existing social media
account such as Facebook or Twitter. For further information, see the
section titled ``DHS's Implementation of Executive Order 13563.''
Mail: U.S. Department of Homeland Security, Office of the
General Counsel, 245 Murray Lane, Mail Stop 0485, Washington, DC 20528-
0485 ATTN: DHS Retrospective Review.
FOR FURTHER INFORMATION CONTACT: Christina E. McDonald, Acting
Associate General Counsel for Regulatory Affairs, U.S. Department of
Homeland Security, Office of the General Counsel. E-mail:
A. Public Participation
Interested persons are invited to comment on this notice by
submitting written data, views, or arguments using any of the methods
identified in the ADDRESSES section.
Instructions: All submissions must include the agency name and
docket number for this notice. All comments received will be posted
without change to http://www.regulations.gov.
Comments that include trade secrets information, confidential
commercial or financial information, Sensitive Security Information
(SSI), Protected Critical Infrastructure Information (PCII) or
Chemical-terrorism Vulnerability Information (CVI) should not be
submitted to the public docket. Please submit such comments separately
from other comments on this notice. Comments containing trade secrets,
confidential commercial or financial information, SSI, PCII, or CVI
should be appropriately marked as containing such information and
submitted by mail to the individual listed in the FOR FURTHER
INFORMATION CONTACT section.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
B. Executive Order 13563
On January 18, 2011, the President issued Executive Order 13563,
``Improving Regulation and Regulatory Review'' (76 FR 3821) to ensure
that Federal regulations seek more affordable, less intrusive means to
achieve policy goals and that agencies give careful consideration to
the benefits and costs of those regulations. The Executive Order
reaffirms and builds upon governing principles of contemporary
regulatory review, including Executive Order 12866, ``Regulatory
Planning and Review'' (58 FR 51735, October 4, 1993). To that end,
Executive Order 13563 requires, among other things, that:
Agencies propose or adopt a regulation only upon a
reasoned determination that its benefits justify its costs; and that
agencies tailor regulations to impose the least burden on society,
consistent with achieving the regulatory objectives, taking into
account, among other things, and to the extent practicable, the costs
of cumulative regulations; and that agencies select, in choosing among
alternative regulatory approaches, those approaches that maximize net
benefits (including potential economic, environmental, public health
and other advantages; distributive impacts; and equity).
The regulatory process encourages public participation and
an open exchange of views, with an opportunity for the public to
Agencies coordinate, simplify, and harmonize regulations
to reduce costs and promote certainty for businesses and the public.
Agencies consider low-cost approaches that reduce burdens
and maintain flexibility.
Regulations be guided by objective scientific evidence.
Additionally, the Executive Order directs agencies to consider how
best to promote retrospective analyses of existing rules. Specifically,
each agency must develop a preliminary plan ``under which the agency
will periodically review its existing significant regulations to
determine whether any such regulations should be modified, streamlined,
expanded, or repealed so as to make the agency's regulatory program
more effective or less burdensome in achieving the regulatory
C. DHS's Regulatory Responsibility
DHS's mission is to ensure a homeland that is safe, secure, and
resilient against terrorism and other hazards. The Department carries
out its mission through the Office of the Secretary and 28 components,
including the following seven operational components: 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
Our mission gives us five main areas of responsibility: (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. To further these
areas, DHS has responsibility for a broad range of regulations. For
example, to secure and manage our borders, DHS regulates people and
goods entering and exiting the United States. DHS, to combat terrorism,
regulates aviation security, high-risk chemical facilities, and
infrastructure protection. DHS also issues regulations to administer
immigration and citizenship benefits as well as regulations covering
maritime safety and environmental protection. Finally, DHS promulgates
a wide range of regulations concerning disaster preparedness, response,
D. DHS's Implementation of Executive Order 13563
As a first step in launching its retrospective review under
Executive Order 13563, DHS is issuing this notice seeking public
comment. To facilitate public dialogue and cross-communication on these
matters, in addition to the standard regulatory channels, DHS is also
seeking comment through IdeaScale. IdeaScale is a Web-based platform
that allows users to actively share information and expertise in a
collaborative manner. IdeaScale allows commenters to submit ideas,
discuss and refine others' ideas, and vote on each others' ideas. For
instructions on how to use IdeaScale, see the ADDRESSES section above.
DHS encourages public commenters to engage in dialogue through
As a participant of IdeaScale, commenters can engage in dialogue in
seven ways: (1) View, search, and explore all content on the site (no
log-in required); (2) Submit an original idea to a particular category
(log-in required); (3) Submit a comment about an idea (log-in
required); (4) Vote on an idea (log-in required); (5) Flag
inappropriate ideas and comments, as being either SPAM/Inappropriate or
Duplicate (log-in required); (6) Share ideas through a Twitter feed or
on your Facebook page (log-in required for IdeaScale, as well as an
active Facebook and/or Twitter account); (7) Tag an idea (participants
can assign key words or terms to ideas to help describe/categorize the
idea, thus allowing the idea to be found again by Web 2.0 browsing or
II. Request for Comment
Pursuant to the Executive Order, DHS is developing a preliminary
plan for the periodic review of its existing significant regulations.
DHS's goal is to create a systematic method for identifying those
significant rules that are obsolete, unnecessary, unjustified, or
simply no longer make sense. Although this review will focus on the
elimination of significant rules that are no longer warranted, DHS will
also consider strengthening, complementing, or modernizing rules where
necessary or appropriate--including, as relevant, undertaking new
rulemakings. The Department stresses that this review is for existing
significant rules; the public should not use this process to submit
comments on proposed rules.
Despite best efforts at the time a rule is promulgated, it is
generally difficult to be certain of the consequences of a rule,
including its costs and benefits, until it has been tested. Because
knowledge about the full effects of a rule tends to be widely dispersed
in society, members of the public are likely to have useful information
and perspectives on the benefits and burdens of existing requirements
and how regulatory obligations may be updated, streamlined, revised, or
repealed to better achieve regulatory objectives, while minimizing
regulatory burdens. Interested parties may also be well-positioned to
identify those rules that are most in need of review and, thus, assist
the Department in prioritizing and properly tailoring its retrospective
review process. In short, engaging the public in an open, transparent
process is a crucial first step in DHS's review of its existing
III. List of Questions for Commenters
Below is a list of preliminary questions, the answers to which will
assist in informing the Department's efforts to develop a preliminary
plan for the retrospective analysis of its existing regulations and to
identify those regulations that may benefit from a retrospective
analysis. In addressing these questions, commenters should identify,
with specificity, the regulation at issue, providing the Code of
Federal Regulation (CFR) cite where available. DHS also requests that
the commenter provide, in as much detail as possible, an explanation
why a regulation should be modified, streamlined, expanded, or
repealed, as well as specific suggestions of ways the Department can
better achieve its regulatory objectives. DHS encourages interested
parties to provide specific data that document the costs, burdens, and
benefits of existing requirements. Comments that rehash debates over
recently issued rules will be less useful.
Commenters might also address how DHS can best obtain and consider
accurate, objective information and 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. Particularly where comments relate to a
rule's costs or benefits, comments will be most useful if there are
data and experience under the rule available to ascertain the rule's
actual impact. For that reason, we encourage the public to emphasize
those rules that have been in effect for a sufficient amount of time to
warrant a fair evaluation.
The below nonexhaustive list is meant to assist in the formulation
of comments and is not intended to restrict the issues that commenters
(1) How can the Department best promote meaningful periodic reviews
of its existing significant regulations, and how can it best identify
those rules that might be modified, streamlined, expanded, or repealed?
(2) What factors should the agency consider in selecting and
prioritizing rules for review?
(3) Are there regulations that simply make no sense or have become
unnecessary, ineffective, or ill advised and, if so, what are they? Are
there rules that can simply be repealed without impairing the
Department's regulatory programs and, if so, what are they?
(4) Are there rules that have become outdated and, if so, how can
they be modernized to accomplish their regulatory objectives better?
(5) Are there rules that are still necessary, but have not operated
as well as expected such that a modified, stronger, or slightly
different approach is justified?
(6) Does the Department currently collect information that it does
not need or use effectively to achieve regulatory objectives?
(7) Are there regulations that are unnecessarily complicated or
could be streamlined to achieve regulatory objectives in more efficient
(8) Are there rules that have been overtaken by technological
developments? Can new technologies be leveraged to modify, streamline,
or do away with existing regulatory requirements?
(9) Are there any of the Department's regulations that are not
tailored to impose the least burden on society, consistent with
achieving the regulatory objectives?
(10) 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?
(11) Are there regulations that are working well that can be
expanded or used as a model to fill gaps in other DHS regulatory
(12) Are there any regulations that create difficulty because of
duplication, overlap, or inconsistency of requirements?
The Department notes that this notice is issued solely for
information and program-planning purposes. Responses to this notice do
not bind DHS to any further actions related to the response.
Ivan K. Fong,
[FR Doc. 2011-5829 Filed 3-11-11; 8:45 am]
BILLING CODE 9110-9B-P