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  • News: DHS Interim Final Rule: Petitions for Rulemaking

    [Federal Register Volume 81, Number 140 (Thursday, July 21, 2016)]
    [Rules and Regulations]
    [Pages 47285-47287]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2016-16984]
    
    
    
    ========================================================================
    Rules and Regulations
                                                    Federal Register
    ________________________________________________________________________
    
    This section of the FEDERAL REGISTER contains regulatory documents 
    having general applicability and legal effect, most of which are keyed 
    to and codified in the Code of Federal Regulations, which is published 
    under 50 titles pursuant to 44 U.S.C. 1510.
    
    The Code of Federal Regulations is sold by the Superintendent of Documents. 
    Prices of new books are listed in the first FEDERAL REGISTER issue of each 
    week.
    
    ========================================================================
    
    
    Federal Register / Vol. 81, No. 140 / Thursday, July 21, 2016 / Rules 
    and Regulations
    
    [[Page 47285]]
    
    
    
    DEPARTMENT OF HOMELAND SECURITY
    
    Office of the Secretary
    
    6 CFR Part 3
    
    [Docket No. DHS-2009-0009]
    RIN 1601-AA56
    
    
    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.
    
    Sec.  3.1 Definitions
    
        This section includes definitions that apply throughout the rule.
    
    Sec.  3.3 Applicability
    
        This section describes the applicability of this rule. Interested 
    persons who wish to submit a rulemaking petition to DHS \1\ must use 
    the process outlined in this rule, except as follows:
    ---------------------------------------------------------------------------
    
        \1\ Except as provided below, reference to DHS in this rule also 
    includes reference to DHS components.
    ---------------------------------------------------------------------------
    
        (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 \2\), 
    U.S. Immigration and Customs Enforcement, the National Protection and 
    Programs Directorate, and the Transportation Security Administration 
    (TSA) among other Department components.
    ---------------------------------------------------------------------------
    
        \2\ In November 2002, Congress passed the Homeland Security Act, 
    and DHS formally came into being as a stand-alone, Cabinet-level 
    department. The Homeland Security Act transferred the Customs 
    Service to DHS, but did not transfer authority related to customs-
    revenue functions to DHS. Section 412 of the Homeland Security Act 
    provided that the Treasury Department retained customs-revenue 
    function authority, but that the Treasury Department could delegate 
    this authority to DHS. By Treasury Department Order 100-16, Treasury 
    delegated to the Secretary of Homeland Security the authority 
    related to the customs revenue functions subject to certain 
    exceptions. One of the exceptions provides that the Secretary of the 
    Treasury retains the sole authority to approve regulations 
    concerning certain specified customs-revenue subject matters. For 
    further discussion of custom-revenue function authority, see the 
    Appendix to 19 CFR part 0.
    ---------------------------------------------------------------------------
    
    Sec.  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
    
    [[Page 47286]]
    
    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.
    
    Sec.  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.
    
    Sec.  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
    
    Sec.
    3.1 Definitions.
    3.3 Applicability.
    3.5 Format and mailing instructions.
    3.7 Content of a rulemaking petition.
    3.9 Responding to a rulemaking petition.
    
        Authority:  5 U.S.C. 301, 553(e); 6 U.S.C. 112.
    
    
    Sec.  3.1  Definitions.
    
        As used in this part:
        Component means each separate organizational entity within the U.S. 
    Department of Homeland Security (DHS) that reports directly to the 
    Office of the Secretary.
        DHS means the U.S. Department of Homeland Security, including its 
    components.
        Rulemaking petition means a petition to issue, amend, or repeal a 
    rule, as described at 5 U.S.C. 553(e).
    
    
    Sec.  3.3  Applicability.
    
        (a) General requirement. Except as provided in paragraph (b) of 
    this section, this part prescribes the exclusive process for interested 
    persons to submit a rulemaking petition on a matter within DHS's 
    jurisdiction.
        (b) Exceptions--(1) U.S. Coast Guard. This part does not apply to 
    any petition for rulemaking directed to the U.S. Coast Guard. Such 
    petitions are governed by 33 CFR 1.05-20.
        (2) Federal Emergency Management Agency. This part does not apply 
    to any petition for rulemaking directed to the Federal Emergency 
    Management Agency. Such petitions are governed by 44 CFR 1.18.
    
    
    Sec.  3.5  Format and mailing instructions.
    
        (a) Format. A rulemaking petition must include in a prominent 
    location--
        (1) The words ``Petition for Rulemaking'' or ``Rulemaking 
    Petition;'' and
        (2) The petitioner's name and a mailing address, in addition to any 
    other contact information (such as telephone number or email) that the 
    petitioner chooses to include.
        (b) Mailing instructions--(1) General mailing address. Any 
    interested person may submit a rulemaking petition by sending it to the 
    following address: U.S. Department of Homeland Security, Office of the 
    General Counsel, Mail Stop 0485, Attn: Regulatory Affairs Law Division, 
    245 Murray Lane SW., Washington, DC 20528-0485.
        (2) Transportation Security Administration mailing address. Any 
    interested person may submit a rulemaking petition regarding a 
    Transportation Security Administration program or authority directly to 
    the Transportation Security Administration by sending it to the 
    following address: Transportation Security Administration, Office of 
    the Chief Counsel, TSA-2, Attn: Regulations and Security Standards 
    Division, 601 South 12th Street, Arlington, VA 20598-6002.
        (3) DHS does not accept rulemaking petitions delivered by courier.
    
    
    Sec.  3.7  Content of a rulemaking petition.
    
        (a) DHS will be better positioned to understand and respond to a 
    rulemaking petition if the petition describes with reasonable 
    particularity the rule that the
    
    [[Page 47287]]
    
    petitioner is asking DHS to issue, amend, or repeal, and the factual 
    and legal basis for the petition. For instance, DHS would be better 
    able to understand and respond to a petition that includes--
        (1) A description of the specific problem that the requested 
    rulemaking would address;
        (2) An explanation of how the requested rulemaking would resolve 
    this problem;
        (3) Data and other information that would be relevant to DHS's 
    consideration of the petition;
        (4) A description of the substance of the requested rulemaking; and
        (5) Citation to the pertinent existing regulations provisions (if 
    any) and pertinent DHS legal authority for taking action.
        (b) [Reserved]
    
    
    Sec.  3.9  Responding to a rulemaking petition.
    
        (a) Public procedure. DHS may, in its discretion, seek broader 
    public comment on a rulemaking petition prior to its disposition under 
    this section.
        (b) Disposition. DHS may respond to the petition by letter or by 
    Federal Register publication. DHS may grant or deny the petition, in 
    whole or in part.
        (c) Grounds for denial. DHS may deny the petition for any reason 
    consistent with law, including, but not limited to, the following 
    reasons: The petition has no merit, the petition is contrary to 
    pertinent statutory authority, the petition is not supported by the 
    relevant information or data, or the petition cannot be addressed 
    because of other priorities or resource constraints.
        (d) Summary disposition. DHS may, by written letter, deny or 
    summarily dismiss without prejudice any petition that is moot, 
    premature, repetitive, or frivolous, or that plainly does not warrant 
    further consideration.
    
    Jeh Charles Johnson,
    Secretary.
    [FR Doc. 2016-16984 Filed 7-20-16; 8:45 am]
     BILLING CODE 9110-9B-P
    
    
    
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