How to File a Petition for Rulemaking

Federal agencies shape the regulatory process, affecting countless aspects of our everyday lives. One of the most important parts of the rulemaking process is the ability of the public to participate. At times, federal agencies fail to develop regulations. A petition for rulemaking is the mechanism by which individuals, public interest groups, and private enterprise can argue in favor of changes or new rules for ensuring the general welfare of the nation.

Introduction to petitioning
The primary law governing the federal regulatory process is the Administrative Procedure Act (APA). The APA provides for petitions for rulemaking in order for the public to express its desire for new regulations, deregulations or modifications to regulations already in effect.

However, the APA is vague in its description of the petition-for-rulemaking process. The APA says only this: "Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." (5 USC 553(e))

Because the APA's description is limited, each federal agency has a different process for petitions. Other federal laws have laid out the process for individual agencies, and some agencies have adopted standard practices. Nonetheless, it is difficult to know how to petition for a rulemaking and what to expect in return.

What to include
Regardless of which agency you are petitioning, there are certain pieces of information you should include in your petition. The following are the suggestions of the Federal Aviation Administration (14 CFR 11.71), which are good examples of what to include in any petition for rulemaking:

1. Your name and mailing address and, if you wish, other contact information such as a fax number, telephone number, or e-mail address.
2. An explanation of your proposed action [commencement of a rulemaking, amendment to an existing rule, or deregulation] and its purpose.
3. The language you propose for a new or amended rule, or the language you would remove from a current rule.
4. An explanation of why your proposed action would be in the public interest.
5. Information and arguments that support your proposed action, including relevant technical and scientific data available to you.
6. Any specific facts or circumstances that support or demonstrate the need for the action you propose.

It is important to note this list of criteria does not mention legal basis. You do not need to be a lawyer or know the ins and outs of federal law in order to file a petition for rulemaking. However, if you are aware of a specific law relevant to your petition, it is helpful to include such information in your supporting argument. An agency may also ask you for more information about your petition or the issue it is addressing.

Where to send it
The proper place to send a petition differs from agency to agency. In some cases, a central office will receive all petitions for rulemaking. In other cases, it is best to send your petition to the specific office ultimately responsible for enforcing an existing rule or developing a new rule. Before submitting your petition, it is always best to check agency websites for more information.

What to expect
Because each agency's process for handling petitions for rulemaking differs, responses differ as well. In some cases, an agency may notify the public of your petition by posting it on its website or publishing a "notice of receipt" in the Federal Register. Other agencies may only notify you personally.

The processing of your request will differ from agency to agency as well. If the agency publishes a notice of receipt, it may also subject your petition to a comment period in which individuals and groups can state their opinion on the matter. In other cases, an agency may deliberate on your petition internally.

Your petition will generally result in either acceptance or denial of the petition. If the agency accepts your petition, it will likely commence a rulemaking or change to an existing rule or begin a deregulatory action, depending on the nature of your petition. If the agency chooses to deny your petition, it will usually notify of you of the denial, post notice of the denial on its website, and/or publish notice of denial in the Federal Register. A final decision on your petition can take months or sometimes years.

Working together
Filing a petition for rulemaking is usually a far more complex and detailed process than commenting on rule. Therefore, it is often wise to seek help in filing a petition.

Other individuals or groups may share your feelings on the need for a rulemaking, change to an existing rule, or repeal of an existing rule. Working together on a petition for rulemaking serves two purposes. First, aggregating your interests with those of others makes your petition that much more powerful. Though agencies are in no way required to respond to public opinion, demonstrating broad support from a large and/or diverse group of people strengthens your argument.

Second, other interested parties, particularly public interest groups or businesses, may have legal, scientific or technical expertise which could also strengthen your argument. Furthermore, these groups and businesses may have experience in petitioning agencies for rulemakings.