[Federal Register Volume 76, Number 49 (Monday, March 14, 2011)]
[Proposed Rules]
[Pages 13526-13528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5829]

Proposed Rules
                                                Federal Register

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.


Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / 
Proposed Rules

[[Page 13526]]


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 
Order 13563

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rules that might be modified, streamlined, expanded, or repealed, so as 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: [email protected]. 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.

Associate General Counsel for Regulatory Affairs, U.S. Department of 
Homeland Security, Office of the General Counsel. E-mail: 
[email protected].


I. Background

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 
    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 safety,

[[Page 13527]]

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, 
and recovery.

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 
significant regulations.

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 
may address:

[[Page 13528]]

    (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,
General Counsel.
[FR Doc. 2011-5829 Filed 3-11-11; 8:45 am]