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Petitions and comments are answered under different provisions of the same statute. Under 5 U.S.C. 553(e), each agency "shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule."¹ Section 555(e) attaches a duty to one thing that can happen to such a document, and section 553(c) says what a comment is promised. What a letter is called is not the whole of it, but it is where the reading starts.

What a denial has to carry

The duty is narrow in what it requires and wide in what it reaches. 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."² Except when affirming a prior denial, or when the denial is self-explanatory, that notice "shall be accompanied by a brief statement of the grounds for denial."² The words "other request" are not confined to petitions, and the subsection says nothing about a request that is granted or one the agency has not acted on.

Section 553 promises a comment something else. What it promises is an opportunity, and then consideration. After notice, the agency "shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments."¹ Then, "after consideration of the relevant matter presented," the agency incorporates in the rules adopted "a concise general statement of their basis and purpose."¹

One office's comments are answered by name

One commenter is singled out by statute, and the provision doing it is easy to miss. Under 5 U.S.C. 603(a), an agency preparing an initial regulatory flexibility analysis transmits a copy to the Chief Counsel for Advocacy of the Small Business Administration.³ The analysis "or a summary" is published in the Federal Register at the time the general notice of proposed rulemaking is published, and the analysis is prepared and made available "for public comment."³

Section 604(a)(3) then requires the final analysis to contain "the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule."⁴ It also requires "a detailed statement of any change made to the proposed rule in the final rule as a result of the comments."⁴ One commenter is named in the statute. The answer owed to that commenter is more specific than the answer owed to anyone else.

One narrower accounting, for one narrower set of comments

Paragraph 604(a)(2) reaches a defined subset. A final regulatory flexibility analysis contains "a statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis."⁴ It also contains the agency's assessment of those issues, and "a statement of any changes made in the proposed rule as a result of such comments."⁴

Two limits sit in that sentence. The comments it reaches are the ones responding to the initial analysis rather than comments at large, and the issues it reaches are the significant ones, which the agency assesses.⁴ Whether an issue was raised at all, though, is settled by reading what the comment says.

What the record is, and who puts things in it

Judicial review runs on the same paper. Under 5 U.S.C. 706, a reviewing court holds unlawful and sets aside "agency action, findings, and conclusions" found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."⁵ A separate ground is action taken "without observance of procedure required by law."⁵ In making those determinations "the court shall review the whole record or those parts of it cited by a party."⁵

A comment is one of the things in that record. It arrives there by being submitted, and a court reads it as filed. Nobody rewrites it in between.

Publication is what makes the rule reach a person

Section 552(a)(1) requires each agency to publish certain things in the Federal Register "for the guidance of the public."⁶ They include substantive rules of general applicability, statements of general policy, rules of procedure, and "each amendment, revision, or repeal of the foregoing."⁶ They also include descriptions of the methods by which the public "may obtain information, make submittals or requests, or obtain decisions."⁶

A consequence follows for anything left unpublished. A person with actual and timely notice of the terms is outside it. Everyone else may not "in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published."⁶ The paragraph then closes by deeming matter incorporated by reference, with the approval of the Director of the Federal Register, to be published.⁶

Choosing the instrument is not our part

What arrives from a client is held in confidence. A writer decides whether to file at all, what position to take, and whether a comment or a petition is the instrument for it, with a lawyer where one is involved. Those choices are made before anything reaches us, and we do not reopen them.

The reading is narrower and it is textual. The first thing is the docket and the proposal the submission answers, both of which belong on the document. The second is whether each issue is stated plainly enough to be recognized as raised. The third is a figure quoted from a source, which goes back to the source. The fourth is whether the document asks for anything, which a request does not always do.