What is DHS Rule 3?
DHS Rule 3, implemented by the Department of Homeland Security (DHS) in accordance with the Homeland Security Act of 2002, offers protection to specific types of disaster survivors. This assistance mandates that the federal government reimburse certain states and localities for emergency protective measures taken in response to a disaster or terrorist event designated by the President as a major disaster.
Essentially, Rule 3 states that "Public Assistance funds are available for emergency protective measures, including direct federal assistance . " The purpose of the rule is to provide federal guidelines on how states and local government can be reimbursed for emergency protective measures they take to protect public health and safety from a major disaster.
The rule does not need to be formally approved or adopted by states and localities, however it must be brushed up on and followed so that the state or locality can seek funds from DHS to cover certain public assistance costs. This funding can cover emergency work including debris removal and emergency protective measures.
Major Components of DHS Rule 3
DHS Rule 3 includes provisions that are substantially different from prior regulations. Section 3.1: This section sets forth a new expansion of the definition of "public charge." While prior regulations define public charge as primarily dependent on cash assistance of certain types, DHS Rule 3 expands the definition to consider other non-cash benefits. The primary addition would be consideration of Medicaid use. Section 3.2: This section sets forth flexibility in specifications for establishing whether an alien is likely to become a public charge. DHS Rule 3 would allow use of totality of circumstances. Section 3.3: This section allows DHS to add or eliminate factors for use in totality of circumstances. This section also sets forth the categories that would be considered as public benefit use under the new definition of "public charge." Section 3.4: This section sets forth a form that would need to be completed—extending these requirements well beyond both current standards and procedural norms. The proposed rule requires both the applicant to provide a signed and notarized affidavit and the agent of the applicant to complete a separate affidavit. Neither step is required under current public charge processing. In addition, the applicant will be required to submit substantial supporting documentation for many of the factors that now appear to be at DHS discretion under current rules.
Impact of DHS Rule 3 on Affected Parties
DHS Rule 3 is anticipated to have a considerable influence on the actors involved in the compliance process. The compliance process extends from the head of the AI/ML project up to the top of the organization, but impacts beyond the organization can also be significant. Accordingly, affected stakeholders can be classified into groups ranging from how they drive compliance to the impact they may experience as consumers or other members of the general public.
Regulators and policymakers are, unsurprisingly, key stakeholders in the compliance process. But while their direct impact is somewhat obvious, the final rule itself is expected to have some indirect consequences on government agencies, both inside and outside the Department of Homeland Security (DHS). Over time, DHS Rule 3 may lead to a more transparent, predictable, and equitable realization of Homeland Security initiatives. However, it may also impose some burdens on members of the DHS and other governmental actors, who will need to integrate requirements for feedback, risk assessments, and other elements into their systems. Also, as the complexity of AI/ML increases, DHS actors may see a relatively greater burden as they drive compliance than their counterparts in the private sector.
These burdens generally do not fall equally across industry participants. Although given the expense and technical expertise required, large businesses are more likely to have the capacity to fulfill the requirements of DHS Rule 3. Smaller businesses will likely find it disproportionately difficult to comply. Discrepancies may also arise by sector, as privacy-focused companies based in the European Union may already have compliant privacy policies, while many social media companies are already subject to GDPR-like regulations. Overall, to the extent that DHS Rule 3 aligns with existing obligations in other legal contexts, it will have a relatively limited impact on affected organizations. Conversely, where it raises new issues, such as requirements for auditing to ensure algorithmic accountability, it may impose significant burdens that will in turn push up costs. Even where the rule outside of the private sector does not directly increase costs, it may prompt significantly greater legal scrutiny in certain areas, such as algorithmic job hiring and lending.
Given the potential severity of its impact on the private sector, DHS Rule 3 may be particularly important for consumers and members of the general public. Privacy advocates, social justice activists, and other civically minded individuals will all be affected by updates to a rule that is designed to ensure that AI/ML systems navigate issues ranging from algorithmic bias to privacy concerns. But DHS Rule 3 is not solely a potential concern for those groups, as the existence of the rule itself may reduce the negative public perceptions of AI/ML. Overall, DHS Rule 3 has the potential to improve government regulation and disclosure related to AI/ML, and simultaneously address some longstanding social concerns.
What to Expect Moving Forward with DHS Rule 3
DHS Rule 3 comes with a set of compliance considerations that manufacturers will need to become familiar with. These considerations apply to those involved in the manufacturing of, technology behind, and support of the equipment used to support the development of the nuclear facilities and weapons of the United States. Assistance may be sought from the U.S. Department of Energy (DOE) as needed.
Additionally, not only will it be necessary to comply with the rules in place by DHS Rule 3, but the practices must be documented, monitored and recorded. More than just establishing safe procedures and guidelines , companies will also need to provide evidence to support their efforts. When DHS investigates a reported incident or after-action report, they will want proof of the steps that were taken by those involved.
To that extent, records, both paper and electronic, should be well organized, stored securely, and easily available for up to five years or later, as DHS may choose at any time to audit the organization. Should it be discovered that violations to DHS Rule 3 have been made, there will be significant penalties as the result of a cease-and-desist order.
Staying Compliant with DHS Rule 3
Over the last two years, Rule 3 of the Department of Homeland Security’s rules of practice has been amended twice. Those amendments make changes to the definitions of applicable time periods and their expression in days. However, there are no substantive changes to the rule beyond those in the scope of the amended definitions.
The first amendment came in April 2018 when DHS revised its practice manual for cases involving citizenship status determinations and adjudications. The revisions included amendments to Rule 3(e) regarding the manner in which days are calculated, as well as adding new definitions of the terms "days," "response," and "served" to Rules 3(b), 3(c), and 3(d), respectively. The changes to Rules 3(b) and 3(c) clarified that days should be counted as beginning on the day after the triggering event occurs, and that a response is deemed to be served if deposited into the U.S. mail. The amendment to Rule 3(d) specifies that calculation of hours should be based on the customer service center’s standard operating procedures.
The second amendment came in December 2019 when DHS made further revisions to its adjudications and citizenship adjudication manuals. Those changes amended Rule 3(e) to clarify the treatment of weekends, holidays, and other courthouse closures in calculating days, and how these closures affect the scheduling of hearings. Rule 3(e) thus was revised to clarify that when the time period specified in (a) of the rule is measured in days, weekends and holidays, as well as court closures, must be counted when calculating those days. As a result, certain hearing dates that are otherwise required to be scheduled at the hearing office are allowed to occur on a weekend or holiday when a continuance would fall on a weekend or holiday.
Clarifying these issues will assist both government and private counsel in understanding the correct application of Rule 3 and facilitate the more efficient processing of cases in rule 3 review cases before DHS.
DHS Rule 3 Updates and Revisions
As with any rule in the realm of technology and law, the future of DHS Rule 3 is uncertain, but there are a number of potential ways in which it has room to evolve in the coming years. For example, the scope of Rule 3 may undergo change. It currently only applies to cellular devices; however, it may widen to cover other devices such as gaming consoles and laptop computers. In the short term, it is likely this change will not take place as people abandon desktop and laptop computers for more versatile devices across the board. Another potential change may be the way in which officer interaction takes place at the border. This could also extend to other amendments regarding the exclusion of attorney-client privileges , a possible right to counsel, the focus of the questioning to avoid fishing expeditions, and protections for sensitive information on targeted devices. As technology evolves, it is also feasible that internet connected devices will increase the potential vulnerability of targeted devices and make internet interconnectedness a larger focal point, so those potential security concerns will continue to drive DHS Rule 3 in the future.