U.S. Departmpnt of Homeland SecuritvWashington, DC 20528

; HomelandSecurity

JUN 0 7 2013

Mr. Joseph P. Whalen51 Ashton PlaceBuffalo, N.Y. 14220

Re: Petition for Rulemaking under 5 U.S.c. $ 553(e): A Request for publication ofprocedures for Filing a Request pursuani to 5 u.s.c. $ ss:(e)

Dear Mr. Whalen:

This letter responds to your June 1 5,2011 letter requesting that the Department of HomelandSecurity (DHS) promulgate regulations to implement 5 u:s.c. g 553(e). we are treating yourletter as a rulemaking petition under 5 U.S.C. $ 553(e).

The Petition

Your petition requests that DHS promulgate regulations establishing procedures fbr individualsto file rulemaking petitions with DHS. iou. p.tition further explains that the request isconsistent with a 1986 recommendation of the Administrative Conference of the United States(ACUS) t Your petition provides highly detailed language of a draft rulemaking petitionregulation for DHS consideration

Administrative Procedure Act

The Administrative Procedure Act (APA)2 was enacted to require agencies to keep the publiccurrently informed of their organization, procedures, and rules; provide for public participationin the rulemaking process; prescribe uniform standards for the conduct of formal rulemakingand adjudicatory proceedings; and restate the law ofjudicial."ui"*J ir;;;;;"y Generalclark explained, the right to petition under: q I c g ss:1"; must be accorded to any"interested person," and an agency may limit this right to persons whose interests are or will beaffected by the issuance, amendment, or repeal of aiule.a with respect to petition forrulemaking, Attomey General Cl'ark advised every agency to adopt rules to require, for

' See 1 C'F'R' $ 305'86-6 (1987) (providing the text of the ACUS recommendation on rulemakingpetitions).

'5 u.s.c. gg 551 - 559, 706 -706.3 see T' c' clark, ArroRNsv GENERAL'S MaNuaL oN THE AourNrsrnATrvE pRocEDURE Acr 9(1e47).

4 Id. at 38.

Mr. Joseph P. WhalenPage 2

example, a statement from the petitioner of the rulemaking action which he seeks, together withany data available in support of his petition, a declaration of the petitioner's interest in theproposed action, and compliance with reasonable formal requirements.'

Discussion

DHS came into existence in November 2002 with the passage of the Homeland Security Act,which integrated all or part of 22 drfferent federal departments and agencies into a unified,integrated Department. Two legacy components within DHS have existing procedures forrulemaking petitions. The procedures for the U.S. Coast Guard are located in 33 C.F.R. $ 1.05-20, and the procedures for the Federal Emergency Management Agency are located at 44 C.F.R.

$ 1.18.

DHS is awate that formalrzatron of procedures for interested individuals to hle petitions forrulemaking would benefit the public, and that providing rulemaking petition procedures for theentire Department would assist interested individuals in filing petitions. The statute, however,does not mandate that DHS publish procedures. And as your letter itself makes clear, nothingprevents an individual from petitioning DHS for a rulemaking simply by submitting a letter tothe Department. Our internal processes ensure that all correspondence is properly assigned forresponse.

Nonetheless, DHS has undertaken measures to develop a regulation providing procedures forinterested individuals to petition for a rulemaking. DHS has initiated efforts to develop apetition process rulemaking, and DHS first included that rulemaking in the Spring 2009 editionof the Unified Agenda of Federal Regulatory and Deregulatory Actions.o Most recently, DHSpublished notification of these efforts in the 2012 edition of the Unified Agenda of FederalRe gu lat ory a nd De re gu I at ory Act i on s.7

As we are sure you are aware from DHS's Unified Agenda, DHS has a substantial regulatoryworkload. To build a homeland that is safe, secure, and resilient, DHS focuses on fivehomeland security missions: preventing terrorism and enhancing security; securing andmanaging our borders; enforcing and administering our immigration laws; safeguarding andsecuring cyberspace; ensuring resilience to disasters; and complementary Departmentresponsibilities. Additionally, DHS is constantly striving to mature and strengthen the homelandsecurity enterprise.

Your letter provides explicit plovisions that you suggest DHS adopt. We appreciate the effortthat you put into the development of this proposal, and we will consider these provisions as wecontinue development of the petition process rulemaking.

' Id.

6 See http://www.reginfo.gov/public/do/eAgendaViewRule?publd:200904&RIN:1601-AA56

7 ,See http://www.reginfo.gov/public/do/eAgendaViewRule?publd:20121O&RIN=1601-AA56

Mr. Joseph P. WhalenPage 3

Conclusion

After careful consideration of the petition for rulemaking, DHS has determined to proceed withthe rulemaking as previously noted in the Unified Agenda and in accord with established

priorities. DHS appreciates your concern for the implementation of the APA and will conclude

the rulemaking at the appropriate time.

Cfr,ae]\rlqt"MChristina E. McDonaldAssociate General Counsel

for Regulatory Affairs