28 C.F.R. § 50.18 — Petitions for rulemaking.

(a)

Applicability of this section.

(1)

General. Except as provided in paragraph (a)(2) of this section, this section prescribes the exclusive process for submitting to the Department of Justice or any of its components a petition requesting that the Department issue, amend, or repeal a Department rule as provided in 5 U.S.C. 553(e), or other statutory provision, and the process by which the Department will consider and respond to such petitions.

(2)

Exception. This section does not apply to any petition submitted regarding the classification of substances pursuant to the Controlled Substances Act, 21 U.S.C. 811. Such petitions are governed by 21 CFR 1308.43 and 1310.02(d) through (h).

(3)

Department discretion. The Department retains the discretion to treat documents that do not meet the requirements of paragraph (c) of this section as petitions for rulemaking. However, the Department will exercise that discretion only in exceptional circumstances.

(b)

Definitions. Component. Each separate organizational entity within the U.S. Department of Justice listed in 28 CFR 0.1.

Department. The U.S. Department of Justice or a component thereof.

Petition for rulemaking. Any written request from a petitioner to issue, adopt, amend, or repeal a Department rule, pursuant to 5 U.S.C. 553(e), that is submitted in accordance with the requirements in paragraph (c) of this section or that the Department deems to be excepted from those requirements under paragraph (a)(3) and treats as a petition for rulemaking under that paragraph.

Petitioner. An individual or entity that has submitted a written request that the Department issue, adopt, amend, or repeal a Department rule.

(c)

Formatting and submission requirements. The Department will not treat a document as a petition for rulemaking unless it meets the following requirements.

(1)

Format. The document must be typewritten and include in a prominent location on the first page—

(i)

The words “Petition for Rulemaking”; and

(ii)

The petitioner's name and mailing address, in addition to any other contact information (such as telephone number or email address) that the petitioner chooses to include.

(2)

Submission. The document must be addressed to the Attorney General and submitted by mail to: “Attorney General, U.S. Department of Justice, 950 Pennsylvania Avenue NW, Washington, DC 20530”.

(3)

Content. The document must include:

(i)

If requesting that the Department amend or repeal an existing rule or regulation, a citation to that rule or provision in the Code of Federal Regulations;

(ii)

If requesting that the Department issue a new rule or amend an existing rule or regulation, the language the petitioner recommends for the new or amended rule or regulatory text;

(iii)

The reasons supporting the proposed action, including the factual or legal problem the petitioner seeks to address;

(iv)

An explanation of how the proposed action would address the problem or problems identified;

(v)

An explanation of why the proposed action would be in the public interest; and

(vi)

The interest that each petitioner has in the action sought.

(4)

Submissions by parties to proceedings before the Department. A document meeting the requirements in paragraphs (c)(1) through (3) of this section may not be treated as a petition for rulemaking if the document's apparent purpose is to advocate on behalf of a party to pending or completed adversarial proceedings before the Department and the substance of the document relates to the substance of the proceedings.

(d)

Additional recommended content for a petition for rulemaking. The Department and its components will be in a better position to understand, consider, and respond to a petition for rulemaking if the petition identifies and directly addresses the petitioner's particular concerns and the specific changes requested. Thus, in addition to the requirements listed in paragraph (c) of this section, the Department recommends that any petition for rulemaking also identify:

(1)

Sources in support of the petitioner's request as well as those counseling against it;

(2)

The legal authority pursuant to which the Department may issue, amend, or repeal the rule in question;

(3)

The name of the component, if known, under whose authority the rule exists or would exist if the petition requests that the Department issue a rule;

(4)

An explanation of why rulemaking is the most appropriate means to address the problem identified in the petition, and why other ways to resolve the problem, such as adjudication or agency guidance, are insufficient; and

(5)

An analysis of reasons for not adopting possible alternative rulemaking approaches to achieve the intended result.

(e)

Docketing and public display. The Department may make a petition for rulemaking, and the Department's response to the petition, publicly available. The Department retains discretion not to post information identified by the petitioner as being inappropriate for public disclosure or which the Department determines is inappropriate for public disclosure.

(f)

Logging and internal Department review of response.

(1)

When the Department receives a petition for rulemaking, the Justice Management Division must log it and send a copy to the Department's Regulatory Policy Officer in the Office of Legal Policy. The Justice Management Division will assign the petition to the appropriate component to prepare a response and will notify the Department's Regulatory Policy Officer of the assignment.

(2)

The Office of Legal Policy will maintain a log that tracks each petition for rulemaking that the Department receives and the status of each such petition, in addition to any similar logs maintained by the Justice Management Division and the component tasked with drafting a response.

(3)

The component tasked with drafting a response to a petition shall submit the draft response to the Office of Legal Policy for appropriate review and clearance and shall coordinate with the Office of Legal Policy on the appropriate means for issuing the response.

(g)

Determination. The Department's determination on a petition for rulemaking may be based upon, but is not limited to, the following considerations:

(1)

The merits of the petition;

(2)

Whether addressing the issues raised in the petition is consistent with the Department's policy preferences and priorities;

(3)

The immediacy of the concern raised;

(4)

The availability of resources and the priority of the issues raised in relation to other Department rulemaking actions;

(5)

Whether the problems or issues raised are already under consideration by the Department in other actions; and

(6)

Whether rulemaking is the appropriate means to address the problems or issues raised.

(h)

Resolution—

(1)

Notification. Upon granting or denying a petition, the Department will notify the petitioner at themailing address provided by the petitioner under paragraph (c)(1)(ii) of this section. If the Department denies the petition in whole or in part, the Department will also provide a brief statement to the petitioner of the grounds for denying it.

(2)

Delegation of authority for denying petitions. The head of a component may deny a petition for rulemaking that relates to matters within the component's jurisdiction after consultation with the Office of Legal Policy as described in paragraph (f)(3) of this section.

(3)

Effect of grant of petition for rulemaking. In general, when the Department grants a petition for rulemaking in whole or in part, it will initiate a rulemaking action under 5 U.S.C. 553, as appropriate. However, such a grant does not mean that the Department will ultimately adopt the petition's proposals or that it will complete any initiated rulemaking action relating to the petition.

(4)

Timing. The Department will endeavor to consider all petitions submitted pursuant to this section as time and resources permit, given its other obligations and responsibilities. However, nothing in this section binds the Department to act within a certain time period when making a determination on a petition, providing notice of such determination to a petitioner, or undertaking a rulemaking (if a petition is granted).

§50.18. Petitions for rulemaking.

Amendments

Authority

Amendments

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Incoming references