Petitions for Rulemaking, Amendment, or Repeal

AGENCY:

Office of the Secretary, DHS.

ACTION:

Interim final rule.

SUMMARY:

Pursuant to the Administrative Procedure Act, the Department of Homeland Security (DHS or Department) is adopting a process under which interested persons may petition the Department to issue, amend, or repeal a rule.

DATES:

This rule is effective August 22, 2016. Comments must be submitted on or before September 19, 2016.

ADDRESSES:

You may submit comments, identified by docket number DHS-2009-0009, by one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov.

(2) Fax: 202-343-4011.

(3) Mail: Danny Fischler, OGC, Mail Stop 0485, 245 Murray Lane SW., Department of Homeland Security, Washington, DC 20528-0485.

Instructions: In your submission, please include the agency name and docket number for this rulemaking. We will post all comments, without any change and including any personal information contained in the comment, to the public docket. All comments may be read at http://www.reguations.gov. We strongly encourage commenters to submit comments through the Federal eRulemaking Portal, as it is the best way to ensure that we timely receive your comment.

Docket: For access to the docket or to read background documents or comments, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Danny Fischler, Office of the General Counsel, U.S. Department of Homeland Security, 202-282-9822.

SUPPLEMENTARY INFORMATION:

I. Background

The Administrative Procedure Act (APA) requires that each agency give interested persons the right to petition the agency for the issuance, amendment, or repeal of a rule. 5 U.S.C. 553(e). Such a petition is known as a “rulemaking petition.” DHS is adopting this rule to describe its procedures for receiving and responding to rulemaking petitions. Other federal agencies have adopted similar petition procedures. See, e.g., 49 CFR 5.11, 5.13 (Department of Transportation); 24 CFR 10.20 (Department of Housing and Urban Development).

Two components of DHS have component-specific regulations governing rulemaking petitions. See 33 CFR 1.05-20 (U.S. Coast Guard); 44 CFR 1.17, 1.18 (Federal Emergency Management Agency (FEMA)). This rule leaves those regulations in place. This rule, however, will cover petitions related to all other components of the Department.

II. Discussion of the Rule

The discussion below provides a section-by-section description of the rule's provisions.

§ 3.1 Definitions

This section includes definitions that apply throughout the rule.

§ 3.3 Applicability

This section describes the applicability of this rule. Interested persons who wish to submit a rulemaking petition to DHS must use the process outlined in this rule, except as follows:

(1) Interested persons who wish to submit a rulemaking petition on a matter related to the U.S. Coast Guard must submit their request to the U.S. Coast Guard pursuant to 33 CFR 1.05-20.

(2) Interested persons who wish to submit a rulemaking petition on a matter related to FEMA must submit their request to FEMA pursuant to 44 CFR 1.18.

In summary, the procedures described in this rule cover rulemaking petitions related to the rulemaking functions of all Department components, except for the U.S. Coast Guard and FEMA. Accordingly, the procedures described in this rule are the exclusive procedures for submitting a rulemaking petition related to the programs and authorities of U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection (except for customs-revenue functions retained by the Department of the Treasury under sections 412 and 415 of the Homeland Security Act and Treasury Department Order No. 100-16 ), U.S. Immigration and Customs Enforcement, the National Protection and Programs Directorate, and the Transportation Security Administration (TSA) among other Department components.

§ 3.5 Format and Mailing Instructions.

This section provides instructions for how to submit a rulemaking petition to the Department. The petitioner must clearly mark the rulemaking petition itself as a rulemaking petition. In addition, the petitioner must provide essential contact information—including a name and mailing address—so that the Department is able to reply to the petitioner. A petitioner may also submit additional information, such as telephone numbers, a fax number, and/or an email address.

The Department will accept petitions by mail (no courier service accepted) to the address(es) designated in the regulation. The Department will accept most petitions for rulemaking at a single address, however, petitioners may also submit petitions related to TSA-specific authorities directly to TSA, at the address in the regulation.

Section 3.5 contains the minimum procedural requirements for formatting and submitting a rulemaking petition under this regulation. In the interest of efficiency and sound public administration, DHS may decline to accept as a rulemaking petition any correspondence that does not meet these basic requirements.

§ 3.7 Content of a Rulemaking Petition

This section discusses the substantive content of a rulemaking petition. DHS encourages petitioners to submit rulemaking petitions that clearly explain what the petitioner is requesting, identify specific regulations, and include actionable data. DHS is better positioned to understand and respond to a rulemaking petition if it describes with reasonable particularity the rule that the petitioner is asking DHS to issue, amend, or repeal, as well as the factual and legal basis for the petition. The regulatory text highlights some items that would help DHS to understand and respond to a petition. DHS may deny the petition if it does not adequately describe what the petition is requesting and provide adequate support for the request.

§ 3.9 Responding to a Rulemaking Petition

The regulation describes DHS's process for responding to rulemaking petitions. This section states that DHS, in its discretion, may solicit public comment on a rulemaking petition. Following appropriate consideration of a rulemaking petition, DHS responds to the petition by letter or by Federal Register publication. The responsible official may grant or deny the petition, in whole or in part. Granting the petition means that DHS is initiating regulatory action.

By contrast to the final disposition outcomes described immediately above, DHS may also deny or summarily dismiss without prejudice any petition that is moot, premature, repetitive, frivolous, or which plainly does not warrant further consideration.

III. Regulatory Analyses

A. Administrative Procedure Act

This is a rule of agency organization, procedure, or practice under the Administrative Procedure Act, 5 U.S.C. 553(b)(A). Although the Administrative Procedure Act does not require DHS to provide a period of advance notice and opportunity for public comment, DHS invites public comment on this rule.

B. Executive Order 12866 Assessment (Regulatory Planning and Review)

Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a significant regulatory action for the purposes of Executive Order 12866, as amended, and therefore review by the Office of Management and Budget is not necessary.

This rule describes how to petition DHS to issue, amend, or repeal a rule. The rule's qualitative benefits include additional transparency and accountability for the public. The rule imposes no additional costs on the public or the government.

C. Regulatory Flexibility Act

This rule does not require a general notice of proposed rulemaking and, therefore, is exempt from the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.

D. Paperwork Reduction Act

This rule does not contain or modify any collections of information under the Paperwork Reduction Act. See 44 U.S.C. 3501 et seq.

List of Subjects in 6 CFR Part 3

• Administrative practice and procedure

For the reasons set forth in the preamble, DHS amends 6 CFR chapter I by adding part 3 to read as follows:

PART 3—PETITIONS FOR RULEMAKING

Authority: 5 U.S.C. 301, 553(e); 6 U.S.C. 112.