Petitions for Rulemaking: An Overview
Released: 2020-01-23T00:00:00

Introduction

Federal rulemaking is one of the crucial methods through which public policy is established and implemented in the United States. Under the constitutional separation of powers system, Congress enacts statutes th at often delegate rulemaking authority to federal agencies. Using that delegated authority, agencies issue regulations to implement those statutes and set the details of public policy.

To structure the ways in which agencies issue regulations pursuant to their delegated authority, Congress has created a statutory scheme of procedural controls. The most significant of these controls is the Administrative Procedure Act (APA) of 1946, which generally requires agencies to issue a proposed rule and take public comment prior to issuing a final rule. Congress designed these basic stepsâwhich create the backbone of the federal rulemaking processâto allow for public input into federal agencies' policymaking decisions. As one scholar noted, "One of the APA's objectives was to open rulemaking to public participation, especially by those whose interests might be adversely affected by an agency's actions. Congress viewed hearing from such parties as a normal part of the legislative process, and therefore applicable to rulemaking."

The APA's notice and comment requirements are possibly the best known and most significant mechanism allowing for public input into the rulemaking process. A lesser known procedural control that Congress created in the APA is a petition mechanism through which any interested party can request an agency to issue, amend, or repeal a rule. An agency is not necessarily required to grant the petition or take the requested action, but the APA does require the agency to respond and to do so in a "reasonable time." Thus, the APA petition mechanism is a potentially efficient (and arguably underused) means for an individual or stakeholder to call on an agency to take a particular action.

This report briefly discusses the origin of the APA petition mechanism, outlines the mechanism's requirements for agencies, provides information from various outside sources about what may make an effective petition, discusses potential benefits to agencies and the public, and, finally, identifies some examples of statutory petition mechanisms that Congress created in addition to the APA's.

APA Petition Mechanism: Historical Origins

The APA's petition mechanism essentially re-stated the right to petition the government established by the U.S. Constitution, which can be traced as far back as the Magna Carta and Declaration of Independence.

U.S. Constitution

The principles on which the APA's petition mechanism are based are generally traced by scholars to the Magna Carta and, in the American context, to the Declaration of Independence. Though it was centuries old by the time of the American Revolution, the Magna Carta was a heavy influence on the colonists who declared their independence from Britain in the 1770s. The Declaration of Independence, which relied on many of the stated rights and liberties granted under the Magna Carta, referenced the failure of the British government to respond to petitions by stating the following immediately after its list of grievances: "In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury." Thus, the implication was that the colonists had an inherent right to petition the king, as well as a right to a response.

Likely as a direct consequence of this perceived slight by the British government, the founders explicitly stated in the First Amendment of the U.S. Constitution that the people had a right to petition the government. Specifically, the First Amendment states that "Congress shall make no law â¦ abridging â¦ the right of the people â¦ to petition the Government for a redress of grievances." Although the First Amendment establishes a right to petition the government, it goes no further in detailing whether or how the government shall respond.

The Administrative Procedure Act

The lineage of this constitutional provision can be traced forward into the 20 th century and directly to the APA itself. The APA's petition mechanism, which allows interested persons to petition the government to take a rulemaking action, could easily be considered a more modern application of the constitutional right to petition. One scholar described the APA as "the bill of rights for the new regulatory state" that "defined the relationship between government and governed." The petition mechanism appears to fit within that characterization. Indeed, the APA's legislative history confirms the link: "Every agency possessing rule-making authority will be required to set up procedures for the receipt, consideration, and disposition of these petitions. The right of petition is written into the Constitution itself. This subsection confirms that right where Congress has delegated legislative powers to administrative agencies."

Congress enacted the APA in 1946 following a large expansion of the federal government's size and authorities during the Franklin D. Roosevelt Administration's New Deal. The APA is considered by most observers to be a compromise between two groups in Congress: conservatives who were wary of the rapid growth of the administrative state and liberals who wanted to protect the ability of agencies to exercise their delegated administrative power. This balance was reflected in the foreword to the compiled legislative history of the APA, in which Senate Judiciary Committee Chairman Pat McCarran stated that although the APA "is brief, it is a comprehensive charger of private liberty and a solemn undertaking of official fairness. It is intended as a guide to him who seeks fair play and equal rights under law, as well as to those invested with executive authority. It upholds law and yet lightens the burden of those in whom the law may impinge."

The petition mechanism, like other elements of the APA, can be contextualized by considering this balancing act between these two main perspectives on the administrative process reforms of the 1930s and 1940s. Many conservatives in Congress who believed that the rapid expansion of the government in the New Deal had the potential to threaten individual rights saw a petition mechanism as a way to provide individuals a means through which they could address grievances directly to government agencies. Some liberals in Congress who were generally more trusting of regulatory agencies and wanted to protect recently enacted New Deal programs were willing to agree to a petition mechanism, but they were cautious about how much would be required of agencies to respond. The petition provision that was ultimately included in the final version of the APA can be seen as a compromise between these two sides and is discussed in detail below.

APA Petition Mechanism: Overview and Requirements

Section 553(e) of the APA states, "Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." Such petitions are sometimes referred to as 553(e) petitions, petitions for rulemaking, petitions for reconsideration, administrative petitions, or citizens' petitions.

Scope of the Petition Mechanism

The APA's requirement for a petition mechanism applies to all agencies covered by the APA, which includes executive agencies and independent regulatory agencies.

Section 553(e) states that the right to petition applies to any "interested person." The Attorney General's Manual on the A dministrative P rocedure A ct , which was published in 1947 and provides the executive branch's interpretation of the APA, states that the right to petition "must be accorded to any 'interested person'" and that "it will be proper for an agency to limit this right to persons whose interests are or will be affected by the issuance, amendment or repeal of a rule."

The scope of agency actions that are covered by the right to petition is wide-ranging. The APA's definition of rule is broad and covers a variety of agency actions, including several types of actions that are not subject to the APA's notice-and-comment rulemaking procedures. Such actions include agency interpretive rules and policy statementsâcategories that are often colloquially referred to as "guidance documents"âand rules of agency organization, procedure, and practice. Thus, the petition mechanism could potentially be used for more than just rules that have undergone, or would be required to undergo, the APA's notice-and-comment procedures.

Interaction with APA Rulemaking Procedures

If an agency grants a petition requesting that it issue, amend, or repeal a rule, any relevant procedural requirements for rulemaking or other type of action would still apply. The Attorney General's Manual states, "If the agency is inclined to grant the petition, the nature of the proposed rule would determine whether public rule making proceedings under section 4(a) and (b) are required." In other words, a rulemaking action is not subject to, or exempt from, any procedural requirements as a result of the action having been taken pursuant to a petition under the APAâit does not provide an alternative means for an agency to take an action without going through otherwise-required procedures. Rather, the granting of the petition merely serves as a starting point for the agency to take an action. If the nature of the action requires notice-and-comment rulemaking, for example, the agency must still engage in those procedures.

In any action an agency chooses to take pursuant to a petition, the agency may act only within the delegated authority that Congress has provided to it in statute. A petition can serve only as a procedural mechanism that could cause or encourage an agency to take action under its established authority.

Agency Consideration and Response to Petitions

Although Section 553(e) is only one sentence in length and provides very little detail, other sections of the APA contain some additional requirements for agencies with regard to receiving, considering, and responding to matters presented to them, including rulemaking petitions. Those requirements are discussed below. Notably, however, agencies have a great deal of discretion in determining the specifics of their procedures for receiving, considering, and responding to petitions.

Submission and Consideration of Petitions

Whereas the constitutional right to petition under the First Amendment does not require the government to consider or respond to a petitionâas described by one scholar, "it is little more than the right to make a clamor" âthe legislative history of the APA's petition mechanism stated that Congress did not intend for agencies to consider petitions "in a merely pro forma manner." Furthermore, the legislative history states that "where such petitions are made, the agency must fully and promptly consider them." Thus, the APA's legislative history suggests that agencies are minimally required to consider rulemaking petitions and arguably to do so in a timely manner.

The text of the APA itself provides little information, however, on how agencies are to consider petitions, thus leaving quite a bit of discretion regarding the process and elements of agencies' consideration of petitions. The Attorney General's Manual states that agencies

should establish, and publish â¦ procedural rules governing the receipt, consideration and disposition of petitions filed pursuant to section 4(d) [of the APA]. These procedural rules may call, for example, for a statement of the rulemaking action which the petitioner seeks, together with any data available in support of his petition, a declaration of the petitioner's interest in the proposed action, and compliance with reasonable formal requirements.

Agency Procedures for Consideration of Petitions

Several agencies have established such requirements for the submission of petitions. For example, the Food and Drug Administration (FDA) has issued regulations requiring certain petitioners to submit four copies of a petition, sign the petition, and include information referenced in the petition as applicable, among other things. Under those same regulations, the FDA commissioner must follow certain procedures and consider specified criteria when making a decision on whether to grant a petition, such as whether the petition is in the public interest and is being pursued in good faith.

On the contrary, some agencies have not established additional requirements for petitioners and merely have the minimal requirements of the APA as a basis for their petition process. For example, the Securities and Exchange Commission provides an address for petitions and asks petitioners to "set forth the text of any proposed rule or amendment" or "specify the rule the repeal of which is sought" but requires little else of petitioners explicitly in its regulations.

In some cases, agencies publish a notice in the Federal Register acknowledging receipt of a petition and asking for public comment as part of its consideration process. For example, in June 2017, the Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) issued a notice stating, "In response to petitions for reconsideration of the final rule on lease and interchange of passenger-carrying commercial motor vehicles (CMVs) published on May 27, 2015, and effective on July 27, 2015, FMCSA intends to revise the regulations to address 'chartering' (subcontracting) and the 48-hour delay in preparing a lease. FMCSA is requesting public comment on the proposed responses to the petitions discussed below." This public input would not substitute for the notice-and-comment rulemaking requirements of the APA if the agency decides to grant a petition, but it could assist the agency in gauging public interest and could provide information to assist the agency in its decision.

ACUS Recommendations on Consideration of Petitions

In 2014, the Administrative Conference of the United States (ACUS) reported that "few agencies have in place official procedures for accepting, processing, and responding to petitions for rulemaking" and that "how petitions are received and treated varies acrossâand even withinâagencies." ACUS issued several recommendations related to petitions for rulemaking, including some that addressed the consideration of petitions. The recommendations stated that, for example, "Each agency that has rulemaking authority should have procedures, embodied in a written and publicly available policy statement or procedural rule, explaining how the agency receives, processes, and responds to petitions" and that "the procedures should indicate how the agency will coordinate the consideration of petitions with other processes and activities used to determine agency priorities, such as the Unified Agenda and retrospective review of existing rules." ACUS also recommended that "the procedures should explain what type of data, argumentation, and other information make a petition more useful and easier for the agency to evaluate." Such information could be of assistance to petitioners as they are preparing to petition agencies.

Response to Petitions

The APA requires that agencies respond to petitions in a timely manner. Specifically, Section 555(b) states that "with due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." This provision has generally been interpreted to apply to a number of potential matters brought to an agency, including petitions for rulemaking: "Citing various combinations of Â§Â§ 553(e), 555(b), and 555(e), courts have repeatedly found that agencies must at least 'respond' to petitions for rulemaking."

Furthermore, the APA appears to require that if the response to a petition is a denial, the agency must provide a reason for the denial. Section 555(e) states that "prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial." Although these provisions appear to establish a requirement for the agency to provide a timely response and a reason for denial, the APA does not further explicate what a response might or should entail.

Presumably, if an agency grants a petition, the agency would conduct any procedural requirements that may apply (such as if the petition requested the agency to issue a rule subject to the APA's notice-and-comment requirements). Simply receiving a petition, however, does not require the agency to grant a petitioner's request. The legislative history of the APA states that agencies have several options in responding to petitions, including denial: "The agency may either grant the petition, undertake public rulemaking proceedings as provided by subsections (a) and (b) of this section, or deny the petition." The Attorney General's Manual appears to express a similar view: "the mere filing of a petition does not require the agency to grant it or to hold a hearing or to engage in any other public rule making proceedings." Thus, it appears that the agency is not necessarily obligated to grant any petition, but it must meet the minimum requirements of receiving the petition and responding to it in a timely manner.

ACUS Recommendations on Agency Responses to Petitions

The ACUS recommendations mentioned above also addressed agencies' responses to petitions, stating that agencies "should provide a reasoned explanation beyond a brief statement of the grounds for denial" and "should not reflexively cite only resource constraints or competing priorities." Furthermore, ACUS recommended that agencies should adopt in their procedures "an expectation that it will respond to all petitions for rulemaking within a stated period (e.g., within 6, 12, or 18 months of submission)," "[e]stablish and make publicly available an individual target timeline for responding to that petition," and "provide the petitioner and the public with a brief explanation for the delay, along with a reasonable new target timeline," if the target cannot be met.

Denial of a Petition: Judicial Review

An agency's denial of a petition may also be subject to judicial review. Section 706(2) of the APA states that courts can review and set aside final agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Section 555's requirement for the agency to give notice of the denial of a petition and to generally accompany the denial with a "brief statement of the grounds for denial" has, at times, been interpreted in combination with Section 706(2) of the APA to require the agency to issue a rational (but potentially brief) explanation for a denial of a petition. In some instances, courts have found agencies' denials of petitions to be in violation of the APA. Frequently when this has occurred, courts have remanded the denial to the agency to reconsider the petition.

Potential Benefits of Rulemaking Petitions

Rulemaking petitions have several potential benefits, such as that they can provide additional, low-cost opportunities for public participation in federal rulemaking. The subsections below identify and discuss several potential benefits of rulemaking petitions. However, as discussed in the last subsection below, responding to rulemaking petitions could potentially require agencies to allocate resources they would otherwise use elsewhere.

Public Involvement in Rulemaking

The primary benefit is arguably the opportunity for stakeholders and interested persons to engage directly in a significant type of federal policymaking. Federal rulemaking is the means through which most federal statutes and programs are implemented, and public participation in that process has been an essential component since the APA was enacted in 1946. The benefits of public participation could flow in both directions: Non-agency parties have a chance to make their views known to agencies, and agencies could learn from petitioners about the impacts of their rulesâpreviously issued or not-yet-issuedâby obtaining additional information or perspectives they may not otherwise consider. One study of the use of petitions for rulemaking under the Endangered Species Act found that outside groups petitioning the Fish and Wildlife Service provided useful information for identifying species that are "at least as deserving of protection under the Act as species identified by the agency on its own," further concluding that "these public participation tools might have an important role to play in collecting dispersed or diffuse information to help better inform agency decisionmaking."

Less Costly Than Judicial Review

The rulemaking petition process provides an arguably more democratic, widely available opportunity for public access by individuals and entities who may not otherwise have an opportunity to challenge agency rules through the courts by seeking judicial review. Filing a petition with a federal agency under the APA or another statutory petition mechanism is likely to be less costly financially and resource-wise than the potential cost of litigation.

Potential for Compelling an Agency to Act

Petitions for rulemaking can potentially serve as a mechanism to try to force an agency to issue a rule through a court challenge: On occasion, rulemaking petitions that were denied and challenged have led to court orders for the issuance of a rule. For example, in 1999, a group of stakeholders petitioned the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from new motor vehicles under its Clean Air Act regulatory authority. EPA took comments on the petition and published notice in 2003 that it was denying the petition. After a judicial challenge to the denial of the petition, in 2007, the Supreme Court held that EPA's reasons for denial of the petition were invalid and that EPA did have the authority to regulate greenhouse gas emissions under the Clean Air Act. The Court determined that, under the Clean Air Act, EPA must make a determination on the merits of whether to regulate greenhouse gas emissions or provide a reasonable explanation why it cannot or will not make that decision.

Potential Intersection with Retrospective Review of Regulations and Regulatory Budgeting

Rulemaking petitions can also encourage agencies to review or eliminate specific regulations that are outdated, ineffective, or overly burdensome. Administrations going back at least to the 1970s have required agencies to engage in retrospective regulatory review. The Trump Administration has taken that requirement a step further with its "one-in-two-out" regulatory requirement, which requires agencies to identify offsetting costs from at least two rules for every rule that imposes new costs. Rulemaking petitions could provide an information mechanism for agencies to comply with these requirements: Outside parties could help identify regulations or portions of regulations that are ripe for revision or elimination.

Increase in Public Legitimacy of Agency Rulemaking

Additionally, by allowing for participation in addition to the notice-and-comment requirements of the APA, agencies could potentially increase their public legitimacyâeither for a particular regulation or as a more general matter. The APA's legislative history acknowledges a potential "public relations" improvement for agencies that use petitions, stating that petitions "should be a most useful instrument of both improving the public relations of administrative agencies and protecting the public by affording interested persons a legal and regulatory means of securing the issuance, change, or rescission of a rule." An announcement in the Federal Register that an agency is considering granting a petition could serve as a notification similar to an advance notice of proposed rulemaking (ANPRM), which is another mechanism for early public participation in the rulemaking process. Such a notice could indicate, even in highly tentative terms, the type of action being considered by the agency and invite public input.

Potential Disadvantages for Rulemaking Petitions

Nonetheless, considering and responding to rulemaking petitions can be time- and resource-intensive for agencies. In 2013, the Nuclear Regulatory Commission (NRC) published a proposed rule to amend its procedures for receiving and considering petitions. In the document, the agency cited an increase in the number of rulemaking petitions it had received recently, stating that this "presented a significant resource challenge to the NRC." Such allocation of resources could cause delays in other activities at an agency, such as issuing other regulations. The use of resources to respond to a petition varies widely depending on the nature and content of the petition, however.

What Makes a Petition Effective?

The effectiveness of, and timing of response to, a petition for rulemaking likely depends on many factors, including the quality and nature of the arguments presented, the policy preferences of the agency and the Administration, any statutory requirements or constraints the agency faces, the evidence available to the agency and its ability to justify taking any particular action, and whatever preferences the agency and Administration may have for prioritization of resources at the agency.

Many of these factors are outside of the control of a petitioner, but there are certain steps a petitioner might take to make a stronger case to the agency. Some outside groups have offered advice to the public for how to petition agencies more effectively. For example, the Center for Effective Government suggested that a petition for rulemaking should include information such as an explanation of the proposed action; the language the petitioner would like to propose for a new or amended rule or eliminate from a rule; information and arguments that support the petitioner's proposed action, including relevant technical and scientific data; specific facts or circumstances that support the proposed action; and relevant legal information about any specific laws or statutory provisions that is relevant to the petition and the rule in question.

Individual agencies may provide guidance, or even requirements, for petitioners on their websites or in their regulations. For example, some of the suggestions provided by the Center for Effective Government above are from the Federal Aviation Administration's (FAA) regulations and guidance, which are on its website. Similarly, the NRC has regulations and detailed information on its website on how to submit petitions, as well as information tracking petitions that have been submitted to it, including visual information on the number and status of the petitions that have been submitted.

As noted above, however, ACUS found in 2014 that few agencies had established official procedures for receiving, considering, and responding to petitions. As such, guidance may not necessarily be available for any particular agency's expectations or requirements. In such circumstances, general guidelines, such as those referred to above from the Center for Effective Government, may be useful.

Other Statutory Authorities for Petitions for Rulemaking

In addition to the APA petition mechanism, Congress has enacted various criteria for specific agencies' decisionmaking processes. Generally, these additional statutory mechanisms appear to build upon the 553(e) petition mechanism. A comprehensive list of all such provisions is beyond the scope of this report, but some examples include the following:

The Fixing America's Surface Transportation Act required FMCSA to publish on a publicly accessible website a summary of all petitions for regulatory action submitted to FMCSA; "prioritize the petitions submitted based on the likelihood of safety improvements resulting from the regulatory action requested;" respond to each petition within 180 days of posting the summary; prioritize responses to petitions consistent with a petition's potential to reduce crashes, improve enforcement, and reduce unnecessary burdens; and keep an updated inventory of the petitions on its website. The Endangered Species Act states, "To the maximum extent practicable, within 90 days after receiving the petition of an interested person under section 553(e) of title 5, to add a species to, or to remove a species from, either of the lists published under subsection (c), the Secretary [of the Interior] shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. If such a petition is found to present such information, the Secretary shall promptly commence a review of the status of the species concerned. The Secretary shall promptly publish each finding made under this subparagraph in the Federal Register." The Food, Drug, and Cosmetic Act contains requirements for the Secretary of Health and Human Services and for individuals petitioning the agency for a regulation on food additives. The statute lists information the petitions shall include, such as detailed scientific information about the additive and "full reports of investigations made with respect to the safety for use of such additive, including full information as to the methods and controls used in conducting such investigations." It also requires a petition to respond to requests from the Secretary for additional information and further requires the Secretary to publish notice of the regulation proposed by the petitioner.