Petition for Agency Rulemaking (APA § 553(e))

PETITION FOR RULEMAKING

Submitted Pursuant to 5 U.S.C. § 553(e)

DATE: [__/__/____]

TO: (Submit to the appropriate agency official — typically the Docket Clerk, General Counsel, or designated rulemaking official)

[________________________________]
[Full Agency Name]
[Office of General Counsel / Docket Clerk / Rulemaking Office]
[Mailing Address or E-Filing Portal URL]
[Email address, if applicable]

FROM:

[________________________________]
[Petitioner Name / Organization]
[________________________________]
[Street Address]
[________________________________], [____] [____________________]
Telephone: ([____]) [____]-[____]
Email: [________________________________]

RE: Petition for Rulemaking to [Adopt / Amend / Repeal] [Rule or Subject Matter Description]

I. INTRODUCTION AND IDENTITY OF PETITIONER

Pursuant to 5 U.S.C. § 553(e), which grants every interested person the right to petition for the issuance, amendment, or repeal of a rule, [________________________________] ("Petitioner") hereby petitions the [________________________________] ("Agency") to initiate rulemaking to [adopt / amend / repeal] [describe the regulatory subject].

A. Identity of Petitioner

Petitioner is [________________________________]. [Describe with specificity: individual, organization, trade association, nonprofit, coalition, etc. Explain the petitioner's expertise, stake in the regulated area, and representative capacity if applicable.]

Petitioner has a concrete and substantial interest in this rulemaking because [________________________________]. Petitioner regularly [operates in / is regulated by / is affected by] the regulatory framework addressed herein and has firsthand knowledge of the regulatory gap, burden, or deficiency that necessitates this petition.

B. Relief Requested

Petitioner requests that the Agency:

1. [Primary request:] [________________________________] (e.g., "Initiate rulemaking to adopt a new regulation at [CFR citation] establishing [subject].")

2. [Secondary request:] [________________________________] (e.g., "Amend [existing regulation] to add [provision].")

3. Acknowledge receipt of this Petition and assign it a docket number;

4. Provide Petitioner with a written response pursuant to 5 U.S.C. § 555(e) within a reasonable time; and

5. If the Agency denies this Petition, provide a reasoned explanation sufficient to permit judicial review.

II. THE REGULATORY PROBLEM

A. Description of the Problem

[________________________________]

[Describe the specific regulatory problem, gap, harm, or deficiency that this petition seeks to address. Be concrete and specific. Explain:

• What is currently happening that is harmful, uncertain, or unaddressed?
• Who is harmed, and how?
• Why is voluntary action or existing guidance insufficient?
• What makes this a regulatory problem requiring formal rulemaking (vs. guidance)?]

B. Magnitude of the Problem

The problem described above affects:

• Approximately [____] regulated entities / individuals
• Generating estimated annual costs / harms of $[____________________]
• Across [____] states / regions / sectors

Supporting data: [________________________________] [See Exhibit A.]

C. Why Existing Regulations Are Inadequate

Current regulations at [cite applicable CFR provisions] [do not address / inadequately address / affirmatively create confusion about] this problem because: [________________________________]

[If seeking to repeal a regulation:] The existing regulation at [cite provision] is no longer justified because [________________________________], including [changes in the regulated industry / advances in technology / changed statutory authority / judicial decisions rendering the rule invalid].

III. PROPOSED RULE

A. Proposed Regulatory Text

Petitioner proposes that the Agency promulgate the following regulatory text (or substantially similar language):

PROPOSED [New Section / Amendment to existing section]:

[Full text of proposed regulation]

Example:
§ [___].[___] [Section Title].

(a) [Operative provision.]

(b) [Definitions.]

(c) [Exceptions, if any.]

(d) [Effective date.]

[If seeking amendment to existing regulation, provide redlined version:]

Current Text (§ [___].[___]):

"[Current regulatory text verbatim]"

Proposed Amended Text (additions underlined, deletions stricken):

"[Revised text with changes indicated]"

B. Alternative Approaches

Petitioner recognizes that the Agency has discretion to choose the approach best suited to the regulatory problem. Petitioner would support the following alternative regulatory approaches if the Agency concludes that the proposed text requires modification:

1. Alternative A: [________________________________]
2. Alternative B: [________________________________]
3. Minimum Acceptable Outcome: At minimum, the Agency should [________________________________] to address the core problem.

IV. LEGAL AND POLICY BASIS

A. Statutory Authority for the Proposed Rule

The Agency has authority to promulgate the proposed rule under:

1. [Primary statutory authority:] [________________________________] (cite specific enabling statute provision — e.g., "Section 10(a)(2) of the [Agency Name] Act, 15 U.S.C. § ___, which directs the Agency to [paraphrase statutory mandate]")

2. [Supporting authority:] [________________________________] (cite additional provisions as applicable)

3. [General rulemaking authority:] The Agency has general authority to issue rules "reasonably necessary to carry out its functions" under [cite provision].

The proposed rule falls squarely within the scope of these statutory provisions because: [________________________________]

Note on Post-Loper Bright Environment: Following Loper Bright Enterprises v. Raimondo (2024), courts no longer defer to agency statutory interpretations. Petitioner has carefully analyzed the statutory authority and believes the proposed rulemaking is clearly authorized. Petitioner directs the Agency's attention to [specific statutory text] as affirmative authority.

B. Constitutional Foundations

[If applicable:] The proposed rule is further supported by the Agency's statutory obligations arising from [constitutional provisions / nondelegation considerations / federalism principles]: [________________________________]

C. Policy Justification

Beyond statutory authority, this rulemaking is justified by the following policy considerations:

1. Public Health and Safety: [________________________________]

2. Consumer Protection: [________________________________]

3. Regulatory Clarity: The current regulatory framework creates uncertainty by [________________________________], causing regulated entities to [________________________________]. A rule would provide clear, predictable guidance.

4. Administrative Efficiency: [________________________________]

5. Competitive Fairness: [________________________________]

6. Alignment with Statutory Purpose: Congress enacted [cite statute] to achieve [stated statutory goal]. The current absence of rulemaking frustrates that purpose because [________________________________].

V. COST-BENEFIT ANALYSIS

A. Expected Benefits

Petitioner estimates that the proposed rule would produce the following benefits:

Supporting analysis: [See Exhibit B.]

B. Expected Costs of the Proposed Rule

Petitioner submits that the benefits substantially outweigh these costs for the following reasons: [________________________________]

C. Cost of Regulatory Inaction

The current regulatory gap imposes estimated annual costs of $[____________________] on [regulated parties / consumers / the public] through [________________________________]. Action by the Agency would eliminate or substantially reduce these costs.

VI. SUPPORT FOR THE PETITION

A. Prior Agency Action or Inaction

[If applicable:] The Agency previously addressed this issue in [prior rulemaking / advance notice / guidance document / report to Congress] but did not complete rulemaking because [________________________________]. The circumstances that caused delay no longer apply because [________________________________].

[If applicable:] The Agency has previously received similar petitions from [________________________________] but has not acted. This petition provides updated data and analysis that further supports the need for rulemaking.

B. Industry and Stakeholder Support

Petitioner is aware that the following stakeholders support this rulemaking:

☐ [Organization 1:] [________________________________] (Letter of support attached as Exhibit C.)
☐ [Organization 2:] [________________________________]
☐ [Other stakeholders:] [________________________________]

C. Relevant Case Law, Reports, and Studies

The need for rulemaking is further supported by:

1. [Court Decision:] [Case name], [citation] (holding [________________________________] and suggesting the need for agency rulemaking on this issue).

2. [Agency Report / GAO Study:] [________________________________] (Exhibit D.)

3. [Academic Study:] [________________________________] (Exhibit E.)

4. [Congressional Correspondence:] [________________________________] (Exhibit F.)

VII. RESPONSE TO ANTICIPATED OBJECTIONS

Petitioner anticipates the Agency may raise the following objections and responds as follows:

Objection 1: "The petition seeks outcomes already addressed by existing guidance."

Response: Guidance documents are not legally binding, cannot be enforced against regulated parties, and do not create rights for those who would benefit from a formal rule. See Perez v. Mortgage Bankers Ass'n, 575 U.S. 92 (2015). Formal rulemaking is required to achieve the regulatory objectives sought here.

Objection 2: "The Agency has competing regulatory priorities."

Response: Under 5 U.S.C. § 555(b), agencies must act on petitions within a reasonable time. Resource constraints do not justify indefinite inaction. TRAC v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984). The urgency of the regulatory problem described herein justifies prioritization.

Objection 3: [Anticipated objection specific to this rulemaking:] [________________________________]

Response: [________________________________]

VIII. AGENCY'S OBLIGATIONS UPON RECEIPT

A. Acknowledgment and Docketing

Upon receipt, the Agency is required to docket this Petition and assign it a tracking number. See 5 U.S.C. § 553(e). Petitioner requests written acknowledgment of receipt.

B. Response Within Reasonable Time

Under 5 U.S.C. § 555(b) and (e), the Agency must respond to this Petition within a reasonable time and must provide prompt notice if the Petition is denied, including a brief statement of the grounds for denial sufficient to permit judicial review.

ACUS Recommendation 2014-6 provides that agencies should respond to petitions within 6–18 months and should provide a reasoned explanation for denial that goes beyond conclusory statements. Petitioner requests a response within [6 / 12] months of receipt.

C. Judicial Review if Petition Is Denied or Ignored

If the Agency denies this Petition without adequate explanation, or if the Agency fails to act for an unreasonable period, Petitioner may seek judicial review:

• Under 5 U.S.C. § 706(1), a reviewing court may compel agency action "unlawfully withheld or unreasonably delayed."
• A denial of a rulemaking petition is reviewable under the arbitrary-and-capricious standard. Massachusetts v. EPA, 549 U.S. 497, 527 (2007).
• The Agency must provide a reasoned explanation that "enable[s] [the court] to see what major issues of policy were ventilated by the informal proceedings." NRDC v. SEC, 606 F.2d 1031, 1049 (D.C. Cir. 1979).

IX. PROPOSED TIMETABLE

Petitioner proposes the following rulemaking timetable:

Petitioner is available to meet with Agency staff to discuss this petition and is prepared to provide technical assistance throughout the rulemaking process.

X. EXHIBITS

• Exhibit A: [Factual data / technical studies supporting the problem description]
• Exhibit B: [Economic analysis / cost-benefit study]
• Exhibit C: [Letters of support from affected stakeholders]
• Exhibit D: [Relevant agency reports or GAO studies]
• Exhibit E: [Academic or scientific studies]
• Exhibit F: [Congressional correspondence or committee reports]
• Exhibit G: [Proposed regulatory text in full]

XI. CONCLUSION

For the reasons set forth above, Petitioner respectfully requests that the [________________________________] initiate rulemaking to [adopt / amend / repeal] [regulatory subject] as proposed herein.

Petitioner stands ready to engage with Agency staff, participate in a pre-rulemaking consultation, provide additional technical information, and support the Agency throughout the rulemaking process.

Respectfully submitted,

[________________________________]
[Signatory Name]

[________________________________]
[Title]

[________________________________]
[Organization]

[________________________________]
[Street Address]

[________________________________], [____] [____________________]

Telephone: ([____]) [____]-[____]
Email: [________________________________]

Date: [__/__/____]

CERTIFICATE OF SUBMISSION

I certify that this Petition for Rulemaking has been submitted to the Agency on [__/__/____] via [mail / regulations.gov / hand delivery / email] and that the information contained herein is true and accurate to the best of my knowledge.

[________________________________]
[Signature]

ATTORNEY PRACTICE NOTES

Petition vs. Comment: A petition for rulemaking under 5 U.S.C. § 553(e) is an affirmative request for the agency to initiate (or modify) rulemaking. It is distinct from a comment on an existing NPRM. File a petition when no NPRM has been issued and you want to force the agency to act.

Agency response obligations: Agencies must respond within a "reasonable time" — courts have found delays of several years to be unreasonable in some cases. If the agency fails to respond, consider filing a petition in federal court under 5 U.S.C. § 706(1) to compel action.

Building a record: If you anticipate that the agency will deny the petition, build a strong factual record now. Courts reviewing a denial apply the arbitrary-and-capricious standard and look to whether the agency adequately considered the evidence presented in the petition.

Mass petitions / coalitions: Agency staff are more likely to prioritize petitions with broad stakeholder support. Consider coordinating with industry groups, academic institutions, or public interest organizations to file jointly or submit supporting letters.

State rulemaking petitions: Most state APAs have analogous petition-for-rulemaking provisions. Check state-specific requirements for format, filing location, and response timelines.

Documentation: Keep a copy of everything submitted and confirmation of receipt. If the agency fails to acknowledge receipt, follow up in writing and document all communications.

Political environment: Rulemaking is inherently political. Consider the agency's current policy priorities, budget constraints, and regulatory agenda. A petition is more likely to succeed if it aligns with current agency priorities or is accompanied by significant public pressure.