OMB Approves DHS Cybersecurity Talent Management System Final Rule

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved a final rule for the DHS Cybersecurity Talent Management System. That final rule had been submitted to OIRA in June 2021. This is a direct final rule with no previous ‘publish and comment’ actions being taken by DHS.

According to the abstract published in the Spring 2021 Unified Agenda for this rulemaking:

“Under 6 U.S.C. 658, the Department of Homeland Security "shall prescribe regulations” to implement Department-specific hiring and compensation flexibilities granted in section 658 to recruit and retain persons with the necessary skills to fulfill the Department’s cybersecurity responsibilities. Under this authority, the Department is establishing a new personnel system for cybersecurity personnel, the Department of Homeland Security Cybersecurity Talent Management System (CTMS).”

There are a number of specific congressional mandates in 6 USC 658 that are clear enough to justify the use of a direct final rule, including specific authority to ‘prescribe regulations’ without any reference to the publish and comment process in §658(b)(6). There are, however, a number of provisions in that section that are permissive in nature, so it will be interesting to see which (if any) of those are included in this new regulation. I suspect that we will see publication of the final rule more quickly than we saw similar rulemaking proceed to publication under the Trump Administration. I would not be surprised to see it published in the Federal Register next week.