The Department of Homeland Security affects many aspects of our everyday lives, and for some of us, it is quite burdensome. One of the most important parts of the rulemaking process is for the American public to participate. In many instances, DHS and other federal agencies promulgate onerous rules—and in other cases fail to develop regulations. A petition for rulemaking is the mechanism by which each of us (individuals, associations and companies) can argue in favor of the issuance, revision, or appeal of a rule.

On July 21, 2016, DHS published an interim final rule adopting a process under which interested people may petition the Department to issue, amend, or repeal a rule. The rule became effective on August 22, 2016 and only two people commented on it.

The regulation describes DHS’s process for responding to rulemaking petitions. DHS, in its discretion, may solicit public comment on a rulemaking petition. The notice also states that DHS may respond to the petition by letter or by Federal Register publication and that the responsible official may grant or deny the petition, in whole or in part. Granting the petition means that DHS is initiating regulatory action. DHS may also dismiss a petition that is moot, premature, etc.

I suspect that many individuals were not aware of this because they might have asked what it meant to them at the time. Now, in a more deregulatory environment, it may play a prominent role, and according to the Center for Effective Government, it should include some of the following:

  1. An explanation of the proposed action (commencement of a rulemaking, amendment to an existing rule, or deregulation) and its purpose.
  2. The language to be proposed for the new or amended rule, or the language to be removed from the current rule.
  3. An explanation of why the proposed action would be in the public interest.
  4. Information and arguments that support the proposed action, including relevant technical and scientific data.
  5. Any specific facts or circumstances that support or demonstrate the need for the action being proposed.

Many petitions for rulemaking have a better chance to succeed if they contain a good regulatory impact analysis (RIA). This document should provide a comprehensive and orderly appraisal of the potential impacts of the new or amended rule to determine whether the regulation is likely to achieve the desired objectives. Regulations commonly have numerous impacts, some of which are often difficult to predict and understand without a detailed study and consultation with affected parties. It is possible that the analysis may show that the deregulatory benefits exceed the costs or that the deregulatory costs may exceed the deregulatory benefits. For the regulating agency to accept the petition for rulemaking, the RIA should ensure that the revisions will be welfare-enhancing from the societal viewpoint; that is, that benefits will exceed costs.

In addition to the above, the RIA should be generally conducted in a comparative context, with different means of achieving the objective sought being analyzed and the results compared.

Petitions for rulemaking are not new, and to date during this administration, very few have been filed by the general public. However, The Pipeline and Hazardous Materials Administration (PHMSA) website lists five new petitions for 2017 and some of these submissions include sufficient and relevant information for a successful rulemaking. The Office of Water at the U.S. Environmental Protection Agency lists two submissions for 2017. Rather than waiting for this Administration to identify rules that may be burdensome, overlapping, arcane, etc., this is a means for the private sector to move forward quickly and become proactive in this new regulatory environment.