We all know old cranks who obsess about their pet peeves. Once triggered, they drive directly into the pothole of their obsession and insist there was no other way to move forward. Well, I have a pet peeve that you may dismiss as a rant from just another aging crank, but it has been with me a long while and is dear to my heart. Here it goes: When courts, agency staff, interested public, and commentators speak of notice-and-comment rulemaking under the Administrative Procedure Act (APA) (as codified in 5 U.S.C. 551 et seq. if you must), they frequently treat the word “comment” as a synonym for the word “issue,” except for when they don’t and don’t tell you. That’s it. Take it in. This inconsistency and conflation of “issue” and “comment” annoys me because it unnecessarily introduces confusion in a field that has plenty without this self-inflicted wound. My pet peeve is fueled by the countless hours and resources wasted by government policy makers wrestling with this confusion.

Frequently, the word “comment” is used to refer to the document submitted by an interested party in response to an agency’s proposed rule published in the Federal Register. This is an appropriate usage. “We read the comment submitted by ABC International, Inc.” But too often, people use the word “comment” to refer to a specific issue that may be raised in a comment submitted in response to the proposal. To those in the academy who write and speak in the field of Administrative Law, if you mean to discuss “issues,” please say “issues.” A comment is a document submitted to the docket; an issue is an argument, concern, or proposal that may appear in a comment.

When conducting rulemaking, agencies are required by the APA to offer evidence of their “consideration of the relevant matter presented.” With this text, the agency is not in legal jeopardy for failure to address a brilliant argument, if the argument was never raised during the notice-and-comment process. The relevant matter must be “presented” to the agency. The APA text also does not require consideration of all matter presented. The agency only needs to show consideration of the “relevant” matter presented. In other words, the agency must consider the “significant issues” raised in the public comments. How does the agency demonstrate compliance with this requirement? The agency publishes its “consideration of the relevant matter” in the preamble to the final rule notice.

In a preamble to a final rule, it is not unusual to see an agency organizing its discussion of the significant issues using sub-headings “Comment” and “Response.” Under the word “Comment,” the agency explains what the commenters said about a specific issue. Under the word “Response,” the agency explains the agency’s response to that issue. What is obvious to most readers is that the word “Comment” is used to mean issue. The subheading “Comment” in this context simply marks where the agency will summarize a significant issue that may have been raised by many commenters. It’s not marking the summary of a single commenter’s submission on the entire proposal. This is an example of agencies perpetuating the confusion. Agencies should say what they mean and use the subheadings “Issue” and “Response” instead.

The courts have said, and many times quoted themselves saying, that “[a]n agency must consider and respond to significant comments received during the period for public comment.” When the courts say this, they are using the word “comments” to refer to issues raised in public comments. The courts are not declaring that the APA requires agencies to respond to every single public document submitted to the docket, nor are they saying the agency has to repeat their response to a significant issue every time it appears in a document. Such interpretations of the case law would be directly contrary to the text and logic of the APA and raise into question the wisdom of the courts. Courts and commentators should stop perpetuating the confusion and instead say what they mean—agencies must consider and respond to “significant issues” raised in the public comments.

Agencies are not required to publish multiple responses to a significant issue just because it was raised multiple times. The agency is only required to publish one response per significant issue, regardless of how many times the issue appears in the public comments. If an agency loses a comment or even several hundred comments, it has not necessarily violated the APA. It has behaved poorly by demonstrating a lack of professionalism. It has certainly ignored the best practices taught in my regulatory process courses. And by doing so, the agency has increased the likelihood of being sued. But if the agency addressed all the significant issues raised in the public comments, it will succeed on judicial review, even though it didn’t read some significant comments. Only if a unique significant issue were raised in the lost comments would the agency be at legal risk. If the public comments on an agency’s proposal raise 10 significant issues, the agency is required by the APA to consider those 10 issues. It is irrelevant to the APA whether those 10 issues were raised in a single comment or a million comments.

In my courses on the regulatory process and comments analysis and in my consulting and advisory roles, I often need to explain the distinction between issues and comments. This should not be complicated, but with so much misuse of the word “comments,” it is a constant battle. This confusion wastes time and resources throughout government agencies. Sometimes, it leads only to short sidebars between agency policy staff and attorneys; other times, the confusion about the meaning of comment versus issues is prolonged into circular debates. Avoiding this waste of government resources might not balance the budget, but it would provide savings in time and resources that could be better spent studying and understanding the significant issues and developing thoughtful responses.

So please, friends, stop confusing people by saying that “agencies must respond to all significant comments” when you mean to say that “agencies must respond to all significant issues.” Unless you love parentheticals, in which case, you can say “agencies must respond to all significant comments (by which I mean, duh, significant issues).” The APA requires agencies to consider and respond to significant issues raised during the comment period; it does not require agencies to respond separately to every comment submitted to the docket. Lastly, I hope you didn’t read this. I had to drive into this pothole; you shouldn’t have followed me.

Andrew Emery is the president of The Regulatory Group, Inc., and Founder and Executive Chair of DocketScope, Inc. Mr. Emery is also a Fellow of the American Bar Association’s Section of Administrative Law and Regulatory Practice, serving as its chair from 2021-22.