Petition for rule-making under 5 USC 553(e)
 

Petition for rule-making under 5 USC 553(e)

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DHS took 2 years to respond to me about this Petition for Rulemaking but they finally said that they will pursue it in due course and that it has been placed back on the DHS Regulatory Agenda. Some of ...

DHS took 2 years to respond to me about this Petition for Rulemaking but they finally said that they will pursue it in due course and that it has been placed back on the DHS Regulatory Agenda. Some of the APA sections cited herein fully support the "Policy Memo for Review and Comment" approach that was adopted by USCIS.

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    Petition for rule-making under 5 USC 553(e) Petition for rule-making under 5 USC 553(e) Document Transcript

    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 1 of 21 Petition for Rulemaking Under 5 USC § 553(e): A Request For Publication Of Procedures For Filing A Request Pursuant To 5 USC § 553(e) Submitted to: Secretary Janet Napolitano U.S. Department of Homeland Security Office of the Secretary Washington, D.C. 20528 Submitted by: Joseph P. Whalen 51 Ashton Place Buffalo, NY 14220 (716) 822-1860 e-mail: joseph.whalen774@gmail.com Mailed June 15, 2011
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 2 of 21 Request For Publication Of Proper Procedures For Filing A Petition for Rulemaking Pursuant To 5 USC § 553(e) Via A Request Submitted Pursuant To Same In The Absence Of Official DHS Guidance Introduction I request that DHS consider promulgating a rule in 6 CFR to implement a particular part of the Administrative Procedures Act (APA) which was suggested in a broad and general official recommendation by the Administrative Conference of the United States (ACUS) many years ago. 5 USC § 553 Rule making (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. Individuals have submitted what they have labeled as and perceived to qualify as a Petition for Rulemaking under 5 USC § 553(e). It the absence of specific instructions in this matter, they apparently did the best they could. I personally feel that in this example cited below, the petitioner was twisting the meaning of that single sentence in the APA. However, since I could not find any rule promulgated under the authority of DHS or Legacy INS, I am not surprised that they couldn‘t find any either. Following the excerpt just mentioned and a few points in support of this request is a proposed regulation for consideration beginning on page seven (7). Recent Example of Such a Petition EPIC1 sent a letter dated May 31, 2009, ostensibly as a ―Petition for Rulemaking under 5 USC § 553(e)‖. It was actually a request to suspend implementation of a change in procedure utilizing a relatively new technology pending a formal rulemaking and the study of potential ―health risks‖ of TSA‘s use of full body scans. As of this writing the cases are dragging on through the court. DHS responded in a letter dated June 19, 2009, (less than 3 weeks later). DHS cited to statutory authority to allow it to proceed. DHS also pointed out that the so-called ―petition‖ was not actually in accordance with 5 USC § 553(e). The following is excerpted from EPIC‘s challenge filed in the DC Circuit in the summer of 2010 (dated July 2, 2010, as posted in internet). ―The right to petition for rulemaking entitles the petitioning party to a response on the merits of the [Section 553(e)] petition.‖ Funds for Animals v. Babbitt, 903 F. 1 Materials relating to EPIC‘s objections to the TSA implementation of full body scans and DHS‘ responses found at: http://www.scribd.com/doc/35498022/EPIC-v-DHS-Emergency-motion-to-suspend-Full-Body-Scanner-program
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 3 of 21 Supp. 96, 115-116 (D.D.C. 1995) (citing American Horse Protection Ass’n, Inc. v. Lyng, 812 F.2d1 , 4 (D.C. Cir. 1987)). "Agencies denying rulemaking provisions must explain their actions." Fund for Animals, 903 F. Supp. at 115. Families for Freedom v. Napolitano, 628 F. Supp.2 d 535, 540 (S.D.N.Y. 2009) (―...it is clear that DHS is required to at least definitively respond to plaintiffs petition - that is, to either grant or deny the petition.‖) ―Under the APA, a federal agency is obligated to conclude a matter presented to it within a reasonable time.‖ In re American Rivers & Idaho Rivers United, 372 F.3d 413, 418 (D.C. Cir. 2004)" A reviewing court may ‗compel agency action unlawfully withheld or unreasonably delayed.‘‖ Id. (quoting 5 U.S.C. § 706(1)). ―There is no per se rule as to how long is too long to wait for agency action, but a reasonable time for agency action is typically counted in weeks or months, not years.‖ Id. at 419 (internal citation and quotations omitted). Further Encouragement under the APA The APA supports collaboration between the various government agencies and interested parties or stakeholders as is evidenced in CHAPTER 5--ADMINISTRATIVE PROCEDURE, SUBCHAPTER III--NEGOTIATED RULEMAKING PROCEDURE, one section is shown below. Rather than resort to that, DHS would likely benefit from a refinement of something that happens all the time anyway. Specifically, interested people submit comments, suggestions, and requests by written correspondence (hardcopy and e-mail) to the Department and its component agencies frequently. At the present time, the whole government is engaged in the Regulatory Review as ordered by the President. On the one hand, this Petition can be subsumed into the current effort. On the other hand, DHS and its many components are regularly inundated with suggestions and comments so a procedure should be put in place for those other times. I believe that by providing some guidance to those seeking to submit their suggestions and comments, DHS would benefit itself. 5 USC § 561 Purpose The purpose of this subchapter is to establish a framework for the conduct of negotiated rulemaking, consistent with section 553 of this title, to encourage agencies to use the process when it enhances the informal rulemaking process. Nothing in this subchapter should be construed as an attempt to limit innovation and experimentation with the negotiated rulemaking process or with other innovative rulemaking procedures otherwise authorized by law. (Added Pub. L. 101-648, Sec. 3(a), Nov. 29, 1990, 104 Stat. 4970, Sec. 581; renumbered Sec. 561, Pub. L. 102-354, Sec. 3(a)(2), Aug. 26, 1992, 106 Stat. 944.)
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 4 of 21 Proper Placement of the Suggested Regulation While it is true that DHS is constantly bombarded with comments relating to the Immigration and Nationality Act (INA, 8 USC), that is not the only statute under the Department‘s authority. The following excerpt from the CFR relates specifically to the Immigration Agencies within DHS and is rightfully in 8 CFR. The authority which is the subject of this Petition is not the INA. The suggested new regulation is better placed in CFR, Title 6: DOMESTIC SECURITY and kept directly under the Office of the Secretary as it would be applicable across many agencies. 8 CFR § 100.5 Regulations. The regulations of the Department of Homeland Security, published as chapter I of title 8 of the Code of Federal Regulations, contain information which under the provisions of section 552 of title 5 of the United States Code, is required to be published and is subdivided into subchapter A (General Provisions, parts 1 through 3, inclusive), subchapter B (Immigration Regulations, parts 100 through 299, inclusive), and subchapter C (Nationality Regulations, parts 306 through 499, inclusive). Any person desiring information with respect to a particular procedure (other than rule making) under the Immigration and Nationality Act should examine the part or section in chapter I of title 8 of the Code of Federal Regulations dealing with such procedures as well as the section of the Act implemented by such part or section. [32 FR 9616, July 4, 1967, as amended at 74 FR 26936, June 5, 2009 (Last update was merely a name change from INS to DHS.)] Learning from the Past The ACUS is only recently reconstituted and is still reawakening. It has not re-promulgated very much at all yet at 1 CFR, Chapter III. However, in a prior incarnation, ACUS did address this very issue. 2 CODE OF FEDERAL REGULATIONS TITLE 1--GENERAL PROVISIONS CHAPTER III--ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 2 Found at: http://www.law.fsu.edu/library/admin/acus/305866.html
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 5 of 21 PART 305--RECOMMENDATIONS OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 1 C.F.R. § 305.86-6 § 305.86-6 Petitions for Rulemaking (Recommendation No. 86-6). The Administrative Procedure Act (APA) requires each federal agency to give interested persons the right to petition for the issuance, amendment, or repeal of a rule, 5 U.S.C. § 553(e). The APA also requires that agencies conclude matters presented to them within a reasonable time, 5 U.S.C. § 555(b), and give prompt notice of the denial of actions requested by interested persons, 5 U.S.C. § 555(e). The APA does not specify the procedures agencies must follow in receiving, considering, or disposing of public petitions for rulemaking. [FN1] However, agencies are expected to establish and publish such procedures in accordance with the public information section of the APA. See Attorney General's Manual on the Administrative Procedure Act 38 (1947). An Administrative Conference study of agency rulemaking petition procedures and practices found that while most agencies with rulemaking power have established some procedures governing petitions for rulemaking, few agencies have established sound practices in dealing with petitions or responded promptly to such petitions. [FN1] But other statutes expressly create the right to petition for rulemaking, and some of these statutes specify procedures to be followed in the petitioning process. This Recommendation sets forth the basic procedures that the Conference believes should be incorporated into agency procedural rules governing petitions for rulemaking. In addition, the Conference encourages agencies to adopt certain other procedures and policies where appropriate and feasible. The Conference feels that, beyond this basic level, uniform specification of agency petition procedures would be undesirable because there are significant differences in the number and nature of petitions received by agencies and in the degree of sophistication of each agency's community of interested persons. Agencies should review their rulemaking petition procedures and practices and, in accordance with this Recommendation, adopt measures that will ensure that the right to petition is a meaningful one. The existence of the right to petition reflects the value Congress has placed on public participation in the agency rulemaking process. The Administrative Conference has recognized, in past recommendations, the benefits flowing from public participation in agency rulemaking and from publication of the means for such participation. [FN2] The absence of published petition procedures, excessive or rigidly-enforced format requirements, and the failure to act promptly on petitions for rulemaking may undermine the public's right to file petitions for rulemaking. [FN2] See Recommendation 69-8, Elimination of Certain Exemptions from the APA Rulemaking Requirements, 1 C.F.R. § 305.69-8; Recommendation 71-6, Public Participation in Administrative Hearings, 1 C.F.R. § 305.71-6; Recommendation 73-5, Elimination of the "Military or Foreign Affairs Function" Exemption from APA Rulemaking Requirements, 1 C.F.R. § 305.73-5; Recommendation 76-5, Interpretive Rules of General Applicability and Statements of General Policy. 1 C.F.R. § 305.76-5;
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 6 of 21 and Recommendation 83-2, The "Good Cause" Exemption from APA Rulemaking Requirements, 1 C.F.R. § 305.83-2. Some agencies currently have petition-for-rulemaking procedures that are more elaborate than those recommended in this Recommendation. This Recommendation is not intended to express a judgment that such procedures are inappropriate or that the statutes mandating particular procedures should be amended. Nor is the Recommendation intended to alter the prior position of the Conference recommending elimination of the categorical exemptions of certain types of rulemaking from the APA's rulemaking requirements. See Recommendations 69-8 and 73-5. To the extent Congress or agencies adopt those recommendations, they should also expressly apply the right to petition to those types of rulemaking. Recommendation 1. Agencies should establish by rule basic procedures for the receipt, consideration, and prompt disposition of petitions for rulemaking. These basic procedures should include: (a) Specification of the address(es) for the filing of petitions and an outline of the recommended contents of the petition, such as the name, address, and telephone number of the petitioner, the statutory authority for the action requested, and a description of the rule to be issued, amended, or repealed; (b) maintenance of a publicly available petition file; and (c) provision for prompt notification to the petitioner of the action taken on the petition, with a summary explanatory statement. 2. In addition, agencies should, where appropriate and feasible: a. Make their petition procedures expressly applicable to all types of rules the agency has authority to adopt; b. Provide guidance on the type of data, argumentation, or other information the agency needs to consider petitions; c. Develop effective methods for providing notice to interested persons that a petition has been filed and identify the agency office or official to whom inquiries and comments should be made; and, d. Establish internal management controls to assure the timely processing of petitions for rulemaking, including deadlines for completing interim actions and reaching conclusions on petitions and systems to monitor compliance with those deadlines. [51 FR 46988, Dec. 30, 1986] Authority: 5 U.S.C. §§ 591-596.
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 7 of 21 SOURCE: 38 FR 19782, July 23, 1973; 57 FR 61760, 61768, Dec. 29, 1992, unless otherwise noted. Proposed New DHS Regulation I suggest that DHS give effect to 5 USC § 553(e) in a broad manner within 6 CFR: Domestic Security and offer sample language as follows. It is patterned after existing regulations of other Departments and Agencies and incorporates portions of the ACUS Recommendation. CFR Title 6: Domestic Security CHAPTER I--DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE SECRETARY PART #—PETITIONS FOR RULEMAKING Section Contents § #.1 Scope. § #.2 Definitions. § #.3 Filing of Petitions for Rulemaking. § #.4 Factors in Considering Petitions for Rulemaking. § #.5 Requirements and Recommendations for Petitions for Rulemaking. § #.6 Granting Petitions. § #.7 Denial of Petitions. § #.8 Publication of Petitions. Authority: 5 U.S.C. 553(e). Source: ## FR ####, DATED, unless otherwise noted. § #.1 Scope. Under the Administrative Procedure Act (APA), any person may petition for the issuance, amendment, or repeal of a rule (5 USC § 553(e)). This part prescribes procedures for the filing and consideration of Petitions for Rulemaking. Generally, the Petition for Rulemaking will identify the rule requested to be repealed; or provide the text of a proposed rule; or amendment. The Petition should include: any reasons, argument, brief, and documentary evidence in support of the Petition. § #.2 Definitions. (a) For purposes of this part— (1) Affected Public(s) refer to
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 8 of 21 (i) Any group of persons, or an individual member thereof, subject to mandatory compliance with the statutes and regulations within the purview of DHS; or (ii) Any group or individual who may make and file an optional or voluntary petition or application for any benefit, relief, designation, or license issued, administered and/or adjudicated by DHS; or any challenge to a denial thereof; or sanction, including fines, suspensions, or revocations. (2) Agency refers to any operational component of the Department to include specific DHS Offices and public facing and/or independent agencies within the Department. (3) Amend or amendment includes any change, modification, expansion, or streamlining as described in and contemplated by any applicable Executive Order in addition to 5 USC § 553(e). (4) Component means any named Office within the Department to include any of DHS‘ public facing agencies. (5) Department or DHS refers to the U.S. Department of Homeland Security. (6) Petition for Rulemaking means a written submission to DHS in accordance with this part. (7) Repeal and revoke are used interchangeably and mean: to cancel, void, overrule, overturn, or withdraw. (8) Rules— (A) Regulatory Rule as contemplated by 5 USC § 553(e) primarily means any regulation published in an applicable title of the Code or Federal Regulations (CFR). (B) Other Rules--DHS may, at its sole discretion, also entertain Petitions containing suggestions or comments regarding other guidance documents or the need for them based on various factors and influences. These may include, but are not limited to: (i) Policy and Procedural Memoranda or Manuals; (ii) Official Interpretations; (iii) Published Legal Opinions of Department or Agency Counsel; (iv) Published and unpublished Administrative Appellate Decisions of potential significant, broad and general effect for DHS and/or its affected publics;
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 9 of 21 (v) Published or unpublished Judicial Decisions of potential significant, broad and general effect for DHS and/or its affected publics; or (vi) Expressions of Congressional Intent as expressed in the Congressional Record in opposition to, in support of, or absent from, the rule, interpretation, policy, or procedure. (b) Any term not defined in this part shall have the meaning most suitable to it in the given context, in the following order: (1) Plain, Constitutional, or Statutory meaning which usually is the plain, ordinary meaning in everyday usage, except as refined by the U.S. Supreme Court, a Circuit Court of Appeals, Administrative Appellate body, or other reliable cognizable source. (2) U.S. Supreme Court definition or interpretation of any ambiguous term as determined by any binding precedent. (3) Circuit Court of Appeals definition or interpretation of any ambiguous term as determined by any binding precedent. (4) Federal Regulation definition or contextual meaning except as further interpreted by: (i) Administrative Definition as determined by any binding precedent, (ii) Administrative Interpretation as determined by any binding precedent, (iii) Administratively Assigned Meaning as determined by Agency Legal Opinion, Policy and/or Procedural Memorandum or Manual, or form instructions. § #.3 Filing Of Petitions For Rulemaking. (a) The Petition will be addressed to the Secretary of the Homeland Security, U.S. Department of Homeland Security, [specific address to be determined], Washington, DC 20###. [In the alternative DHS could direct an interested person to a specific named Office within DHS or its website for either “current mailing address” or for an e-mail address for the submission.] (b) For purposes of computing time periods under this part, a Petition shall be considered filed when time-date stamped by the Office of the Secretary. A document is time-date stamped when it is received in the Office of the Secretary. (c) The Petition will be given prompt consideration and the Secretary or Secretary‘s Designee will determine whether the Petition for Rulemaking meets the minimum
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 10 of 21 requirement for consideration as described in §§ #.4 and #.5 and if acceptable, shall assign the Petition for further review to the appropriate party at either the Department level, or within a specific DHS Office or component agency. (d) The petitioner will be notified promptly of: any preliminary action taken and, within a reasonable period of time, the final decision. § #.4 Factors In Considering Petitions For Rulemaking. (a) The major factors DHS considers in deciding whether to entertain, grant or deny a Petition regarding a request for rulemaking include the following items: (1) Whether the rule involved presents an unreasonable risk of injustice to the petitioner and affected public. (2) Whether a rule is reasonably necessary to eliminate or reduce the risk of injustice to the petitioner and affected public. (3) Whether failure of DHS to initiate the rulemaking proceeding requested would unreasonably expose the petitioner or affected public to the risk of injustice that the petitioner alleges is presented by the rule or lack thereof. (4) Whether, in the case of a Petition to repeal a rule, the repeal of the rule will be an effective action in order to adequately protect the petitioner and affected public from the unreasonable injustice perceived by petitioner to be associated with rule presented. (5) Whether a rulemaking would be beneficial to DHS. (b) In considering the above factors: (1) DHS will assess and assign each pertinent, legitimate point made in the Petition a relative priority level based on the purported or perceived risk of injustice associated with the rule about which the Petition has been filed. (2) The level of complexity or ease in adopting or rejecting the recommendation in the Petition. (3) Another major influence on its decision shall be DHS‘ resources available for rulemaking activities with respect to the proposed action in relation to overall Department, Office, or Agency priorities and mandates.
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 11 of 21 § #.5 Requirements And Recommendations For Petitions For Rulemaking. (a) Requirements. – (1) To be considered a Petition for Rulemaking under this part, any request to issue, amend or revoke a regulatory rule must meet the requirements of paragraph (b) in this section; (2) A Petition that is outside the authority and scope of DHS may be rejected and returned to the petition stating that it has been filed with the wrong Department, or, if DHS deems the Petition to be of sufficiently significant merit, it may be forwarded to the correct Department, but DHS is not obligated to do so; (3) A Petition that does not address DHS rulemaking may be summarily dismissed as incompetent, irrelevant, and immaterial, or (4) A Petition addressing an item described in § #.2(a)(8)(B) may be entertained by DHS in its sole discretion. (b) A Petition for Rulemaking shall: (1) Be written in the English language; (2) Be typewritten and/or submitted on a disc or CD in a commonly available word document format, if submitted in hardcopy, supply at least three (3) full copies of the Petition and supporting evidence, [DHS might want to consider allowing submission via e-mail.] (3) Be titled as a ―Petition for Rulemaking under 5 USC § 553(e):‖ then provide a succinct subtitle that provides context and specifically identifies the statute, regulation or other legal basis for the promulgation of the existing or proposed rule at issue, (4) Be addressed to the Secretary of the Department of Homeland Security and may also include any specific agency or agencies affected if the Petition does not apply to the entire Department, (5) Contain the name, affiliation (if any), mailing address, telephone number and the e-mail address (if any) of the petitioner; (6) In a brief introductory paragraph, section or abstract, indicate the subject matter by specific citation to statute, and identify the affected public regulated under the applicable statute(s) that DHS administers for which a rule is sought or for which there is an existing rule sought to be modified or revoked.
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 12 of 21 (7) If the petition regards a procedural or other rule not involving a specific statute, the type of rule involved must be indicated, such as the specific CFR citation or items described in § #.2(a)(8)(B), as applicable. (8) Contain an explicit request to initiate DHS rulemaking and set forth a concise description of the substance of the proposed rule, or amendment describing specific changes, or the existing rule sought to be revoked in a brief introductory paragraph or section. Provided, that a vague, non-specific, broad, general complaint or grievance, or any request for an impermissible action under this part merely purporting to be a Petition for Rulemaking that does not comport with the type of action contemplated under 5 USC § 553(e) or this part shall not be sufficient for purposes of this subsection and will be summarily dismissed, potentially with prejudice to renewed action under this part or debarment from further petitioning under this section for a specified period, up to and including--- until further notice. (9) If a new rule is proposed, the Petition should include specific suggested language, be written and formatted in accordance 1 CFR § 21.11, or for a proposed amendment, the existing rule should be copied and must clearly describe specific changes, indicating language to altered, added, or deleted, with specificity. (10) Present argument and evidence to support the Petition in a clear and coherent manner, as briefly as practicable but not to the detriment of the request. (c) Legal or Substantive Recommendations, Argument and Evidence—DHS encourages the submission of as much information as possible related to the Petition. Thus, to assist DHS in its evaluation of a Petition, to the extent the information is known and available to the petitioner, the petitioner is encouraged to supply the following information or any other information relating to the petition. Any Petition will be considered by DHS, as is practicable, even if the petitioner is unable to supply all of the information recommended in this paragraph (c), but the extent of that consideration will be in its sole discretion. However, as applicable, and to the extent possible, the petitioner is encouraged to: (1) Set forth facts which establish the claim that the issuance, amendment, or revocation of the rule is necessary. For example, such facts may include: (A) The petitioner‘s personal experience in the form of an affidavit, and (B) The affidavits or others, however, hearsay and anecdotal evidence may ultimately be given less weight or found not credible; (C) Straightforward statutory obligations or rules required due to precedent; (D) Photographic or video evidence (which will be subject to authentication);
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 13 of 21 (E) Reliable and verifiable data such as from a survey, inventory or poll; or (F) A credible research study based on a sound premise and reasonable methodology; and (2) Describe any specific risk(s) or other negative impacts of any perceived problem, inefficiency, or injustice to which the Petition is addressed, including the degree (severity) and the nature of the risk(s) or other negative impacts of any perceived problem, inefficiency, or injustice associated with the rule or lack thereof and possible reasons for the existence of the risk or negative impact of any perceived problem, inefficiency, or injustice and whether it is viewed as an intentional or unintentional problem, inefficiency or in justice; (3) State why an alternate solution would not be feasible or desirable if the Petition requesting the issuance of a rule is not approved; and (4) Supply or reference any known documentation, scholarly articles, works or studies, commercial technical studies or reports and their findings, legal analyses, economic analyses and environmental impact analyses relating to the petition, as applicable. § #.6 Granting Petitions. (a) DHS shall either grant or deny a Petition within a reasonable time after it is filed, taking into account the resources available for processing the petition. DHS may also grant a Petition in part or deny it in part. If DHS grants a Petition, it shall begin rulemaking proceedings to issue, amend or revoke the rule under the appropriate provisions of the statutes under its administration. Beginning a proceeding means taking the first step in the rulemaking process (issuance of an advance notice of proposed rulemaking or a notice of proposed rulemaking, placement on the regulatory agenda, or additional review in preparation for one of the aforementioned actions, whichever is applicable). (b) Granting a Petition and beginning a proceeding does not necessarily mean that DHS will issue, amend or revoke the rule as requested in the Petition. DHS must make a final decision as to the issuance, amendment, or revocation of a rule on the basis of all available relevant information developed in the course of the rulemaking proceeding. Should later information indicate that the action is unwarranted or not necessary, DHS may terminate the proceeding. § #.7 Denial of Petitions. (a) If DHS denies a Petition it shall promptly notify the petitioner in writing of its reasons for such denial as required by the Administrative Procedure Act, 5 USC § 555(e). (b) If DHS denies a Petition, the petitioner (or another party) can re-file the Petition if the party can demonstrate that new or changed circumstances or additional information
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 14 of 21 justify reconsideration by the Department or component agency. There is no administrative appeal of a denial of a Petition for Rulemaking. (c) The DHS denial of a Petition shall not preclude the Department or any component thereof from taking the information under advisement, monitoring the subject matter at issue, or otherwise continuing to consider topics raised by that Petition. § #.8 Publication of Petitions. (a) Any Petition for Rulemaking or parts thereof may be published in the Federal Register if the official responsible for acting on the Petition(s) determines that public comment may aid in consideration of that Petition or several of similarly focused Petitions. (b) Likewise, DHS may publish a Petition and its response thereto whether it is granted, denied or merely taken under advisement in order to address any matter of controversy or remove uncertainty, as permitted by the Administrative Procedure Act, 5 USC § 554(e). For Easy Reference: 5 USC § 554 Adjudications (e) The agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty. 5 USC § 555 Ancillary matters (e) 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. Learning from other Agencies An example of an agency that did promulgate a regulation in order to implement 5 USC § 553(e):: Department of the Interior, Office of the Secretary [Simple Approach.] CFR Title 43: Public Lands: Interior Subtitle A--OFFICE OF THE SECRETARY OF THE INTERIOR PART 14— PROCEDURE FOR PETITIONING FOR RULEMAKING
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 15 of 21 Section Contents § 14.1 Scope. § 14.2 Filing of petitions. § 14.3 Consideration of petitions. § 14.4 Publication of petitions. Authority: 5 U.S.C. 553(e). Source: 46 FR 47789, Sept. 30, 1981, unless otherwise noted. § 14.1 Scope. This part prescribes procedures for the filing and consideration of petitions for rulemaking. § 14.2 Filing of petitions. Under the Administrative Procedure Act, any person may petition for the issuance, amendment, or repeal of a rule (5 U.S.C. 553(e)). The petition will be addressed to the Secretary of the Interior, U.S. Department of the Interior, Washington, DC 20240. It will identify the rule requested to be repealed or provide the text of a proposed rule or amendment and include reasons in support of the petition. § 14.3 Consideration of petitions. The petition will be given prompt consideration and the petitioner will be notified promptly of action taken. § 14.4 Publication of petitions. A petition for rulemaking may be published in the Federal Register if the official responsible for acting on the petition determines that public comment may aid in consideration of the petition. An example of an agency that did not promulgate a regulation specifically in order to implement 5 USC § 553(e) but does cover the provision via another statutory authority: Federal Trade Commission. [Highly streamlined approach as to the basic Petition for Rulemaking but has multiple other sections for very specific purposes.] Title 16: Commercial Practices CHAPTER I--FEDERAL TRADE COMMISSION SUBCHAPTER A--ORGANIZATION, PROCEDURES AND RULES OF PRACTICE PART 1—GENERAL PROCEDURES Subpart B—Rules and Rulemaking Under Section 18(a)(1)(B) of the FTC Act
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 16 of 21 Authority: 15 U.S.C. 46; 15 U.S.C. 57a; 5 U.S.C. 552; sec. 212(a), Pub. L. 104–121, 110 Stat. 857 (5 U.S.C. 601 note). § 1.9 Petitions to commence trade regulation rule proceedings. Trade regulation rule proceedings may be commenced by the Commission upon its own initiative or pursuant to written petition filed with the Secretary by any interested person stating reasonable grounds therefor. If the Commission determines to commence a trade regulation rule proceeding pursuant to the petition, the petitioner shall be mailed a copy of the public notices issued under §§1.10, 1.11 and 1.12. Any person whose petition is not deemed by the Commission sufficient to warrant commencement of a rulemaking proceeding shall be notified of that determination and may be given an opportunity to submit additional data. [46 FR 26288, May, 12, 1981, as amended at 50 FR 53303, Dec. 31, 1985] Another example of an agency that did promulgate a regulation in order to implement 5 USC § 553(e): Consumer Product Safety Commission [Complex approach.] CFR Title 16: Commercial Practices3 CHAPTER II--CONSUMER PRODUCT SAFETY COMMISSION SUBCHAPTER A--GENERAL PART 1051—PROCEDURE FOR PETITIONING FOR RULEMAKING Section Contents § 1051.1 Scope. § 1051.2 General. § 1051.3 Place of filing. § 1051.4 Time of filing. § 1051.5 Requirements and recommendations for petitions. § 1051.6 Documents not considered petitions. § 1051.7 Statement in support of or in opposition to petitions; Duty of petitioners to remain apprised of developments regarding petitions. § 1051.8 Public hearings on petitions. § 1051.9 Factors the Commission considers in granting or denying petitions. § 1051.10 Granting petitions. § 1051.11 Denial of petitions. Authority: 5 U.S.C. 553(e), 5 U.S.C. 555(e). Source: 48 FR 57123, Dec. 28, 1983, unless otherwise noted. 3 http://ecfr.gpoaccess.gov/cgi/t/text/text- idx?c=ecfr&sid=d435405a6c65e940d84d9021f44a25f4&tpl=/ecfrbrowse/Title16/16cfr1051_main_02.tpl
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 17 of 21 § 1051.1 Scope. (a) This part establishes procedures for the submission and disposition of petitions for the issuance, amendment or revocation of rules under the Consumer Product Safety Act (CPSA) (15 U.S.C. 2051 et seq. ) or other statutes administered by the Consumer Product Safety Commission. (b) Persons filing petitions for rulemaking shall follow as closely as possible the requirements and are encouraged to follow as closely as possible the recommendations for filing petitions under §1051.5. (c) Petitions regarding products regulated under the Federal Hazardous Substances Act (FHSA) (15 U.S.C. 1261 et seq. ) are governed by existing Commission procedures at 16 CFR 1500.82. Petitions regarding the exemption of products regulated under the Poison Prevention Packaging Act of 1970 (PPPA) (15 U.S.C. 1471 et seq. ) are governed by existing Commission procedures at 16 CFR part 1702. In addition, however, persons filing such petitions shall follow the requirements and are encouraged to follow the recommendations for filing petitions as set forth in §1051.5. [48 FR 57123, Dec. 28, 1983 as amended at 64 FR 48704, Sept. 8, 1999] § 1051.2 General. (a) Any person may file with the Commission a petition requesting the Commission to begin a proceeding to issue, amend or revoke a regulation under any of the statutes it administers. (b) A petition which addresses a risk of injury associated with a product which could be eliminated or reduced to a sufficient extent by action taken under the Federal Hazardous Substances Act, the Poison Prevention Packaging Act of 1970, or the Flammable Fabrics Act may be considered by the Commission under those Acts. However, if the Commission finds by rule, in accordance with section 30(d) of the CPSA, as amended by Public Law 94–284, that it is in the public interest to regulate such risk of injury under the CPSA, it may do so. Upon determination by the Office of the General Counsel that a petition should be considered under one of these acts rather than the CPSA, the Office of the Secretary shall docket and process the petition under the appropriate act and inform the petitioner of this determination. Such docketing, however, shall not preclude the Commission from proceeding to regulate the product under the CPSA after making the necessary findings. § 1051.3 Place of filing. A petition should be mailed to: Office of the Secretary, Consumer Product Safety Commission, Washington, DC 20207. Persons wishing to file a petition in person may do so in the Office of the Secretary, at 4330 East West Highway, Bethesda, Maryland. [48 FR 57123, Dec. 28, 1983, as amended at 62 FR 46667, Sept. 4, 1997]
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 18 of 21 § 1051.4 Time of filing. For purposes of computing time periods under this part, a petition shall be considered filed when time-date stamped by the Office of the Secretary. A document is time-date stamped when it is received in the Office of the Secretary. § 1051.5 Requirements and recommendations for petitions. (a) Requirements. To be considered a petition under this part, any request to issue, amend or revoke a rule shall meet the requirements of this paragraph (a). A petition shall: (1) Be written in the English language; (2) Contain the name and address of the petitioner; (3) Indicate the product (or products) regulated under the Consumer Product Safety Act or other statute the Commission administers for which a rule is sought or for which there is an existing rule sought to be modified or revoked. (If the petition regards a procedural or other rule not involving a specific product, the type of rule involved must be indicated.) (4) Set forth facts which establish the claim that the issuance, amendment, or revocation of the rule is necessary (for example, such facts may include personal experience; medical, engineering or injury data; or a research study); and (5) Contain an explicit request to initiate Commission rulemaking and set forth a brief description of the substance of the proposed rule or amendment or revocation thereof which it is claimed should be issued by the Commission. (A general request for regulatory action which does not reasonably specify the type of action requested shall not be sufficient for purposes of this subsection.) (b) Recommendations. The Commission encourages the submission of as much information as possible related to the petition. Thus, to assist the Commission in its evaluation of a petition, to the extent the information is known and available to the petitioner, the petitioner is encouraged to supply the following information or any other information relating to the petition. The petition will be considered by the Commission even if the petitioner is unable to supply the information recommended in this paragraph (b). However, as applicable, and to the extent possible, the petitioner is encouraged to: (1) Describe the specific risk(s) of injury to which the petition is addressed, including the degree (severity) and the nature of the risk(s) of injury associated with the product and possible reasons for the existence of the risk of injury (for example, product defect, poor design, faulty workmanship, or intentional or unintentional misuse); (2) State why a consumer product safety standard would not be feasible if the petition requests the issuance of a rule declaring the product to be a banned hazardous product; and
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 19 of 21 (3) Supply or reference any known documentation, engineering studies, technical studies, reports of injuries, medical findings, legal analyses, economic analyses and environmental impact analyses relating to the petition. (c) Procedural recommendations. The following are procedural recommendations to help the Commission in its consideration of petitions. The Commission requests, but does not require, that a petition filed under this part: (1) Be typewritten, (2) Include the word ―petition‖ in a heading preceding the text, (3) Specify what section of the statute administered by the Commission authorizes the requested rulemaking, (4) Include the telephone number of the petitioner, and (5) Be accompanied by at least five (5) copies of the petition. § 1051.6 Documents not considered petitions. (a) A document filed with the Commission which addresses a topic or involves a product outside the jurisdiction of the Commission will not be considered to be a petition. After consultation with the Office of the General Counsel, the Office of the Secretary, if appropriate, will forward to the appropriate agency documents which address products or topics within the jurisdiction of other agencies. The Office of the Secretary shall notify the sender of the document that it has been forwarded to the appropriate agency. (b) Any other documents filed with the Office of the Secretary that are determined by the Office of the General Counsel not to be petitions shall be evaluated for possible staff action. The Office of the General Counsel shall notify the writer of the manner in which the Commission staff is treating the document. If the writer has indicated an intention to petition the Commission, the Office of the General Counsel shall inform the writer of the procedure to be followed for petitioning. § 1051.7 Statement in support of or in opposition to petitions; Duty of petitioners to remain apprised of developments regarding petitions. (a) Any person may file a statement with the Office of the Secretary in support of or in opposition to a petition prior to Commission action on the petition. Persons submitting statements in opposition to a petition are encouraged to provide copies of such statements to the petitioner. (b) It is the duty of the petitioner, or any person submitting a statement in support of or in opposition to a petition, to keep himself or herself apprised of developments regarding the
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 20 of 21 petition. Information regarding the status of petitions is available from the Office of the Secretary of the Commission. (c) The Office of the Secretary shall send to the petitioner a copy of the staff briefing package on his or her petition at the same time the package is transmitted to the Commissioners for decision. § 1051.8 Public hearings on petitions. (a) The Commission may hold a public hearing or may conduct such investigation or proceeding, including a public meeting, as it deems appropriate to determine whether a petition should be granted. (b) If the Commission decides that a public hearing on a petition, or any portion thereof, would contribute to its determination of whether to grant or deny the petition, it shall publish in the Federal Register a notice of a hearing on the petition and invite interested persons to submit their views through an oral or written presentation or both. The hearings shall be informal, nonadversary, legislative-type proceedings in accordance with 16 CFR part 1052. § 1051.9 Factors the Commission considers in granting or denying petitions. (a) The major factors the Commission considers in deciding whether to grant or deny a petition regarding a product include the following items: (1) Whether the product involved presents an unreasonable risk of injury. (2) Whether a rule is reasonably necessary to eliminate or reduce the risk of injury. (3) Whether failure of the Commission to initiate the rulemaking proceeding requested would unreasonably expose the petitioner or other consumers to the risk of injury which the petitioner alleges is presented by the product. (4) Whether, in the case of a petition to declare a consumer product a ―banned hazardous product‖ under section 8 of the CPSA, the product is being or will be distributed in commerce and whether a feasible consumer product safety standard would adequately protect the public from the unreasonable risk of injury associated with such product. (b) In considering these factors, the Commission will treat as an important component of each one the relative priority of the risk of injury associated with the product about which the petition has been filed and the Commission's resources available for rulemaking activities with respect to that risk of injury. The CPSC Policy on Establishing Priorities for Commission Action, 16 CFR 1009.8, sets forth the criteria upon which Commission priorities are based. § 1051.10 Granting petitions. (a) The Commission shall either grant or deny a petition within a reasonable time after it is filed, taking into account the resources available for processing the petition. The Commission may also
    • Petition for Rulemaking under 5 USC § 553(e), from Joseph P. Whalen, June 15, 2011 Page 21 of 21 grant a petition in part or deny it in part. If the Commission grants a petition, it shall begin proceedings to issue, amend or revoke the rule under the appropriate provisions of the statutes under its administration. Beginning a proceeding means taking the first step in the rulemaking process (issuance of an advance notice of proposed rulemaking or a notice of proposed rulemaking, whichever is applicable). (b) Granting a petition and beginning a proceeding does not necessarily mean that the Commission will issue, amend or revoke the rule as requested in the petition. The Commission must make a final decision as to the issuance, amendment, or revocation of a rule on the basis of all available relevant information developed in the course of the rulemaking proceeding. Should later information indicate that the action is unwarranted or not necessary, the Commission may terminate the proceeding. § 1051.11 Denial of petitions. (a) If the Commission denies a petition it shall promptly notify the petitioner in writing of its reasons for such denial as required by the Administrative Procedure Act, 5 U.S.C. 555(e). (b) If the Commission denies a petition, the petitioner (or another party) can refile the petition if the party can demonstrate that new or changed circumstances or additional information justify reconsideration by the Commission. (c) A Commission denial of a petition shall not preclude the Commission from continuing to consider matters raised in the petition. Thank you for the opportunity to offer this proposed regulation in this Petition for Rulemaking under 5 USC § 553(e). I look forward to a response as to whether any action will be taken on this request. ____________________________________ ______________________________ Joseph P. Whalen Date Signed and Mailed 51 Ashton Place Buffalo, NY 14220 (716) 822-1860 e-mail: joseph.whalen774@gmail.com