SUPPLEMENTARY INFORMATION:

I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule through one of the two methods identified above and by the deadline stated above.

Please note that all comments received are considered part of the public record and made available for public inspection at https://www.regulations.gov. Such information includes personally identifiable information (such as your name, address, etc.) voluntarily submitted by the commenter.

The Department may withhold from public viewing information provided in comments that it determines is offensive, that may adversely impact the privacy of a third party, or for other legitimate reasons. For additional information, please read the privacy notice that is available through the link in the footer of https://www.regulations.gov.

II. Background

The Administrative Procedure Act (“APA”) requires that each agency give interested persons the right to petition that agency to issue, amend, or repeal a rule. See5 U.S.C. 553(e). Such a petition is known as a “petition for rulemaking.” The APA generally does not establish procedures that agencies must follow in connection with petitions for rulemaking, leaving the specific procedures to agency discretion. See Adoption of Recommendations, Admin. Conf. of the U.S., Recommendation 2014-6, Petitions for Rulemaking, 79 FR 75114, 75117 (Dec. 17, 2014) (“ACUS Recommendation 2014-6”); Maeve P. Carey, Cong. Rsch. Serv., R46190, ( printed page 47957) Petitions for Rulemaking: An Overview 5 (2020), https://perma.cc/​2L7C-ZJND (“CRS, Petitions for Rulemaking”). Other Federal agencies have enacted petition procedures. See, e.g.,6 CFR part 3 (Department of Homeland Security); 10 CFR 2.802, 2.803 (Nuclear Regulatory Commission); 14 CFR 11.61-11.103 (Federal Aviation Administration); 24 CFR 10.20 (Department of Housing and Urban Development); 43 CFR part 14 (Department of the Interior); 49 CFR 389.33 (Department of Transportation).

III. Description

The Department's rulemaking components have previously received and responded to petitions for rulemaking from members of the public. Until now, however, there has not been a Department-wide set of procedures addressing how the public should submit petitions for rulemaking, or how the Department considers and responds to those petitions. This rule seeks both to enhance public accessibility to the petitioning process and to establish a standard process by which the Department can efficiently manage petitions for rulemaking. Accordingly, the rule presents the requirements for prospective petitioners in a step-by-step process and explains the Department's internal procedure for receiving, tracking, considering, and responding to such petitions. See Attorney General's Manual on the Administrative Procedure Act 38 (1947) (“APA Manual”) (encouraging agencies to issue “procedural rules governing the receipt, consideration and disposition of petitions” for rulemaking).

The rule adds to part 50 of title 28 of the Code of Federal Regulations (“Statements of Policy”) a new § 50.18, entitled “Petitions for rulemaking.” Section 50.18 is composed of paragraphs (a) through (h), which set forth: (a) the applicability of the rule; (b) pertinent definitions; (c) requirements for documents to be treated as petitions for rulemaking; (d) recommended petition content; (e) information regarding public display of petitions; (f) internal Department procedures for logging, routing, and tracking petitions; (g) Department considerations when evaluating a petition; and (h) the process for, effect of, and timing of Department responses to petitions.

A. General Provisions (Paragraphs (a) and (b))

New § 50.18 begins by setting forth general information about the section in paragraphs (a) and (b). Paragraph (a)(1) provides that § 50.18 describes the exclusive process for submitting a petition for rulemaking to the Department and any of its components as well as the Department's exclusive process for considering such petitions. Paragraph (a)(2) excepts from this exclusivity provision any petitions submitted to the Drug Enforcement Administration under the Controlled Substances Act regarding the classification of substances, see21 U.S.C. 811. Such petitions are instead governed by 21 CFR 1308.43 and 1310.02(d) through (h). Because § 50.18 only governs petitions for rulemaking, whether submitted under the APA or other law, it does not cover petitions requesting that the Department or a component take action other than issuing, amending, or appealing a rule or regulation. Paragraph (a)(3) provides that, although the Department retains discretion to treat documents that do not meet the requirements of paragraph (c) as petitions for rulemaking, the Department will only do so in exceptional circumstances.

Paragraph (b) provides definitions for the following terms used in the section: “component”, “Department”, “petition for rulemaking”, and “petitioner.” “Component” means each separate entity within the Department listed in 28 CFR 0.1, while “Department” is defined to refer to the Department or a component of it. 28 CFR 50.18(b). “Petitioner” is defined as an individual or entity that has submitted a written request for the Department to issue, adopt, amend, or repeal a Department rule. Id. Finally, “petition for rulemaking” is defined as a written request from a petitioner to issue, adopt, amend, or repeal a Department rule as provided in 5 U.S.C. 553(e). The Department further clarifies that a document not meeting the requirements in paragraph (c) is not considered to be a “petition for rulemaking” under § 50.18 unless the Department deems it to be excepted from those requirements pursuant to paragraph (a)(3).

B. Requirements and Recommendations for Petitions for Rulemaking (Paragraphs (c) and (d))

Paragraphs (c) and (d) set forth the features the Department requires for a document to be considered a petition for rulemaking, as well as suggestions for the content of petitions. Pursuant to paragraph (c), to be treated as a petition for rulemaking, a document must:

• include in a prominent location on the first page the words “Petition for Rulemaking”,28 CFR 50.18(c)(1)(i);
• include in a prominent location on the first page the petitioner's name and mailing address,28 CFR 50.18(c)(1)(ii);
• 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”28 CFR 50.18(c)(2); and
• include the following specific content: (i) if requesting that the Department amend or repeal an existing rule, a citation to that rule; (ii) if requesting that the Department issue a new rule or amend an existing rule, the language the petitioner recommends for the new or amended rule; (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 of each petitioner in the action sought.28 CFR 50.18(c)(3).

If a document meets the requirements in paragraph (c), the Department may decline to treat it as a petition for rulemaking if its apparent purpose is to advocate for a regulatory change on behalf of a party to pending or completed adversarial proceedings before the Department and the substance of the document relates to such proceedings. 28 CFR 50.18(c)(4). Such documents may be better treated as filings in the pending or completed proceedings and may raise ex parte communication concerns if the opposing party to those proceedings is not served. To avoid such concerns, the Department may decline to treat these documents as petitions for rulemaking and may decline to address the merits of any arguments made in them.

The Department has determined that having a basic set of submission requirements is necessary to ensure that the Department recognizes petitions for rulemaking when submitted and handles them appropriately. See APA Manual at 38 (stating that agency procedural rules governing petitions for rulemaking “may call, for example, for . . . compliance with reasonable formal requirements”); ACUS Recommendation 2014-6, 79 FR 75118 (recommending that agencies “designate a particular person or office to receive and distribute all petitions for rulemaking to ensure that each petition for rulemaking is expeditiously directed to the appropriate agency personnel for consideration and disposition”). In the absence of such basic requirements, the Department has determined that components currently have different ways of treating documents requesting changes to Department regulations and that the public is confused about the ( printed page 47958) proper addressee for rulemaking petitions. Additionally, the content requirements ensure that documents treated as petitions are petitions in substance, and not just in form, warranting a Departmental response. Without content requirements, the Department is concerned that it may have to allocate significant resources to respond to vague requests for rulemaking and that such reallocation of resources could cause delays in other important Department activities. See CRS, Petitions for Rulemaking at 11 (discussing the potential disadvantages of rulemaking petitions); Revisions to the Petition for Rulemaking Process, 78 FR 25886, 25887-88 (May 3, 2013) (proposed rule from the Nuclear Regulatory Commission discussing the difficulties the agency faced in processing petitions for rulemaking and the need for early screening to reduce the number of petitions that must receive full consideration and response); Revisions to the Petition for Rulemaking Process, 80 FR 60513, 60515 (Oct. 7, 2015) (final rule adopting without change the proposed rule's requirements that petitions be docketed and receive full consideration).

In addition to the requirements above, the Department includes in paragraph (d) recommendations for members of the public to consider when drafting petitions. See CRS, Petitions for Rulemaking at 12 (“Individual agencies may provide guidance, or even requirements, for petitioners . . . in their regulations.”). These recommendations are materially similar to recommendations provided by other agencies and non-governmental organizations. See generally id. (describing suggestions from the Center for Effective Government, some of which are derived from related Federal Aviation Administration regulations). In the Department's experience, the information identified in paragraph (d) helps the Department and its components better understand and consider petitions for rulemaking. See ACUS Recommendation 2014-6, 79 FR 75118 (recommending that agency procedures “explain what type of data, argumentation, and other information make a petition more useful and easier for the agency to evaluate”).

C. Internal Department Processing and Procedures (Paragraphs (e) Through (h))

In paragraphs (e), (f), (g), and (h), the Department sets out its internal processes and considerations with respect to petitions for rulemaking.

Paragraph (e) alerts the public that the Department may make publicly available any petition for rulemaking and its response. If the Department and relevant component make such documents public, they retain the discretion not to post information designated by the petitioner as inappropriate for public disclosure. Accordingly, petitioners should be careful to note in their submissions if there is information included that they do not wish to be made publicly available. Additionally, the Department and relevant component retain discretion not to post content that they determine is inappropriate for public disclosure. Content inappropriate for public disclosure generally includes information that may impact the privacy of an individual, confidential business information, sexually graphic content, and content that promotes violence.

Paragraph (f) codifies the Department's internal processes for routing petitions for rulemaking and responses. When a petition is received by mail as provided in § 50.18(c)(2), it will be logged by the Justice Management Division (“JMD”) and a copy will be sent to the Department's Regulatory Policy Officer in the Office of Legal Policy (“OLP”). See ACUS Recommendation 2014-6, 79 FR 75118 (recommending that agencies “designate a particular person or office to receive and distribute all petitions for rulemaking to ensure that each petition for rulemaking is expeditiously directed to the appropriate agency personnel for consideration and disposition”). JMD will assign the petition to the appropriate component for a response and will track both the petition and response. See id. OLP will maintain a log that tracks each petition for rulemaking and will coordinate internal Department review and clearance of draft responses prior to their issuance. See id. at 75119 (“Agencies should maintain a summary log or report listing all petitions, the date each was received, and the date of disposition or target timeline for disposition[.]”).

Paragraph (g) describes the criteria that the Department may consider when evaluating a petition for rulemaking. The Department provides this information in addition to the requirements in paragraph (c)(3) and the recommended petition content in paragraph (d) to aid interested persons when they are drafting petitions for rulemaking.

Paragraph (h) describes the nature and timing of a response to a petition for rulemaking. First, upon granting or denying a petition, the Department (or the relevant component) will notify the petitioner of the resolution at the contact information the petitioner provided under paragraph (c)(1)(ii). 28 CFR 50.18(h)(1). If the petition is denied in whole or in part, the Department's response will provide a brief statement of the grounds for denying it. See5 U.S.C. 555(e) (“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.”). Denying a petition does not preclude the Department (or a relevant component) from considering one or more of the issues raised in the petition in future actions.

Second, the head of a component may deny a petition for rulemaking relating to matters within its jurisdiction. 28 CFR 50.18(h)(2). By this rule, the Attorney General is delegating this authority to component heads to better allow for timely resolution of petitions. However, the requirement that denials be coordinated with OLP will ensure that any denials are cleared by Department leadership and represent the Department's positions on the issues involved.

Third, when the Department grants a petition, the Department will initiate a rulemaking action under 5 U.S.C. 553, as appropriate, although taking such an action does not mean that the Department will ultimately adopt the petition's proposals or that the Department will complete the rulemaking. 28 CFR 50.18(h)(3). See CRS, Petitions for Rulemaking at 5 (“[T]he 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.”). The Attorney General is not delegating general authority in this rule to grant petitions for rulemaking, because such actions often involve issuing a notice of proposed rulemaking and delegations to propose rules have typically been made through more specific delegations, generally by topic and by component.^[1]

Finally, the Department will endeavor to consider all petitions submitted as time and resources permit but specifies that nothing in § 50.18 binds the Department to act within a certain time period when making a determination on a petition, providing notice of such determination to the petitioner, or ( printed page 47959) undertaking a rulemaking after granting a petition. 8 CFR 50.18(h)(4).

IV. Regulatory Certifications

A. Administrative Procedure Act

This rule relates to a matter of agency management or personnel and is a rule of agency organization, procedure, or practice. This rule describes how an interested person may petition the Department to issue, amend, or repeal a rule and explains the procedures that the Department will follow to respond to rulemaking petitions it receives. As such, this rule is exempt from the usual requirements of prior notice and comment, and from a 30-day delay in effective date. See5 U.S.C. 553(a)(2), (b)(A), (d). Although the APA does not require the Department to provide a period of advance notice nor an opportunity for public comment, the Department invites public comment on this rule.

B. Regulatory Flexibility Act

A regulatory flexibility analysis under the Regulatory Flexibility Act is not required for this interim final rule because the Department was not required to publish a general notice of proposed rulemaking for this matter. See5 U.S.C. 601(2), 604(a).

C. Executive Orders 12866 (Regulatory Planning and Review) and 14192 (Unleashing Prosperity Through Deregulation)

This rule is limited to agency organization, management, or personnel matters and is therefore not subject to review by the Office of Management and Budget, pursuant to section 3(d)(3) of Executive Order 12866, and section 5(b) of Executive Order 14192. SeeE.O. 12866, 58 FR 51735, 51737 (Sept. 30, 1993); E.O. 14192, 90 FR 9065, 9066 (Jan. 31, 2025).

D. Executive Order 14294 (Overcriminalization of Federal Regulations)

Executive Order 14294 requires agencies promulgating regulations with criminal regulatory offenses potentially subject to criminal enforcement to explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to each element of those offenses. SeeE.O. 14294, 90 FR 20363, 20363 (May 9, 2025). This rule does not promulgate a regulation potentially subject to criminal enforcement and is thus exempt from Executive Order 14924's requirements.

E. Executive Order 12988 (Civil Justice Reform)

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 to specify provisions in clear language. SeeE.O. 12988, 61 FR 4729, 4730-32 (Feb. 5, 1996).

F. Executive Order 13132 (Federalism)

This rule will not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Department has determined that this rule does not have sufficient federalism implications to warrant preparing a federalism summary impact statement. SeeE.O. 13132, 64 FR 43255, 43257-58 (Aug. 4, 1999).

G. Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure of $100 million or more (adjusted for inflation) in any one year by State, local, and Tribal governments in the aggregate or by the private sector, and it will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.

H. Congressional Review Act

This rule is not a “major rule” as defined by the Congressional Review Act (“CRA”), 5 U.S.C. 804(2). This action pertains to agency management and to matters of agency organization, procedure, or practice, and does not substantially affect the rights or obligations of non-agency parties. Accordingly, it is also not a “rule” as that term is defined in the CRA, see5 U.S.C. 804(3), and the reporting requirement of 5 U.S.C. 801 does not apply.

I. Paperwork Reduction Act of 1995

This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521.

Accordingly, by virtue of the authority vested in me as Attorney General, including by 5 U.S.C. 301 and 28 U.S.C. 509-510, part 50 of title 28 of the Code of Federal Regulations is amended as follows: