Humane Society of the United States v. AGRI ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2022 Decided July 22, 2022
No. 20-5291
HUMANE SOCIETY OF THE UNITED STATES, ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-02458)
Caroline A. Flynn argued the cause for appellants. With
her on the briefs were Ralph E. Henry, L. Allison Herzog,
Roman Martinez, and Julia A. Hatcher.
H. Thomas Byron III, Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
were Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Sushma Soni, Attorney.
Before: TATEL ∗, MILLETT, and RAO, Circuit Judges.
∗
Judge Tatel assumed senior status after this case was argued and
before the date of this opinion.
2
Opinion for the Court filed by Circuit Judge TATEL.
Dissenting opinion by Circuit Judge RAO.
TATEL, Circuit Judge: At the culmination of a five-month
rulemaking, the Department of Agriculture announced a final
rule designed to protect show horses from abuse. As required
by the Federal Register Act, the agency transmitted the signed
rule to the Office of the Federal Register, which made it
available for public inspection. But on the day President Trump
took the oath of office, his Chief of Staff directed executive
agencies to withdraw all pending rules. The question in this
case is whether an agency must provide notice and an
opportunity for comment when withdrawing a rule that has
been filed for public inspection but not yet published in the
Federal Register. We hold that it must.
I.
The rule at issue in this case marks the latest effort in a
fifty-year campaign to end the “soring” of show horses. To sore
a horse means to cut, burn, or otherwise inflict pain on its legs
to alter its natural gait. This form of abuse became a common
method to “create[] artificially” the “distinctive ‘walk’” of
Tennessee walking horses popular in exhibitions without
laborious and expensive training. H.R. Rep. No. 91-1597, at 2
(1970).
In 1970, Congress enacted the Horse Protection Act to bar
the showing or sale of any horse subjected to a “cruel or
inhumane method or device” “for the purpose of affecting its
gait.” Pub. L. No. 91-540, § 2, 84 Stat. 1404. The statute sought
both to ensure humane treatment of horses and to prevent
unscrupulous trainers from “compet[ing] unfairly” with those
who opted to train their horses rather than torment them.
3
Id. § 3. It directed the Secretary of Agriculture to conduct
inspections as necessary to enforce these prohibitions. Id. § 5.
The 1970 Act did little to abate mistreatment. In particular,
the “limited resources available to the Department of
Agriculture” allowed it to inspect horses at only a handful of
the several thousand exhibitions each year. H.R. Rep. No. 94-
1174, at 5 (1976).
To bolster the Department’s enforcement capabilities,
Congress amended the Horse Protection Act in 1976,
authorizing the agency to issue regulations for the appointment
of private inspectors at horse exhibitions. Pub L. No. 94-360,
§ 5, 90 Stat. 915. Exercising this authority, the Department
established a system of “designated qualified persons”—
inspectors selected by management to inspect horses at their
shows. Definition of Terms and Certification and Licensing of
Designated Qualified Persons, 44 Fed. Reg. 1,558, 1,562–63
(Jan. 5, 1979). Program regulations permitted horse industry
organizations, after obtaining agency certification, to license
designated qualified persons without direct agency training or
oversight. Id. at 1,563. By appointing a designated qualified
person to inspect horses at an exhibition, the exhibition’s
management fulfilled its “responsib[ility] for identifying all
horses that are sore.” Prohibition Concerning Exhibitors of
Horses, 44 Fed. Reg. 25,172, 25,182 (Apr. 27, 1979).
Placing horse industry groups in charge of inspections
proved ineffective, and soring continued apace. In 2010, the
Department of Agriculture’s Office of the Inspector General
published a report finding that the “current program for
inspecting show horses for abuse is not adequate to ensure that
these animals are not being sored.” U.S. Department of
Agriculture Office of the Inspector General, Audit Report
33601-2-KC, Animal and Plant Health Inspection Service
4
Administration of the Horse Protection Program and the
Slaughter Horse Transport Program 10 (Sept. 2010). Because
designated qualified persons were beholden to “the horse show
organizers who employ[ed] them,” they had “a direct conflict
of interest with enforcing the law” and often overlooked
violations. Id. at 10–11. The OIG report recommended that the
Department abolish the designated-qualified-person system
and “establish by regulation that inspectors will be
independent, USDA-accredited veterinarians.” Id. at 17.
Under increasing pressure following the OIG report, the
Department published notice of a proposed rule under which it
would assume direct control of inspector licensure and training
consistent with the report’s recommendations. Licensing of
Designated Qualified Persons and Other Amendments, 81 Fed.
Reg. 49,112 (July 26, 2016). The Department held five public
hearings, extended the rule’s comment period, and ultimately
received over 130,000 written comments. See 81 Fed. Reg.
65,307 (Sept. 22, 2016).
On January 11, 2017, the Department posted on its website
a signed final rule that substantially adhered to its initial
proposal along with a press release announcing that it had
“announced a final rule” that “will be publish[ed] in the Federal
Register in the coming days.” The rule provided that some of
its provisions would become effective thirty days after
publication while others would take effect the next year. The
Department then transmitted the rule to the Office of the
Federal Register (OFR) for publication. Following the internal
processing required by OFR regulations, OFR scheduled the
rule for publication and made it available for public inspection
on January 19, 2017.
The next day, the newly inaugurated President’s Chief of
Staff issued a memorandum directing all executive agencies to
5
“immediately withdraw” “regulations that have been sent to the
OFR but not published in the Federal Register.” Regulatory
Freeze Pending Review, 82 Fed. Reg. 8,346, 8,346 (Jan. 24,
2017). Pursuant to that directive, the Department withdrew the
rule from publication and took no further action on the
rulemaking.
The Humane Society filed suit along with four of its
members challenging the rule’s withdrawal. It principally
claims that the Department unlawfully repealed the rule
without notice and comment or the reasoned decisionmaking
that the Administrative Procedure Act requires. The district
court dismissed, agreeing with the government that a rule
becomes final only upon Federal Register publication. Humane
Society of the United States v. Department of Agriculture, 474
F. Supp. 3d 320, 330–31 (D.D.C. 2020). The district court also
rejected the Humane Society’s alternative argument that OFR
violated its own regulations. Our review is de novo. See Safari
Club International v. Jewell, 842 F.3d 1280, 1285 (D.C. Cir.
2016) (reviewing de novo questions of subject matter
jurisdiction and failure to state a claim).
II.
We can quickly dispense with the government’s argument
that the Humane Society and its members lack Article III
standing to challenge the rule’s withdrawal. “As the Supreme
Court explained in Lujan v. Defenders of Wildlife, to establish
constitutional standing, plaintiffs must satisfy three elements:
(1) they must have suffered an injury in fact that is ‘concrete
and particularized’ and ‘actual or imminent, not conjectural or
hypothetical’; (2) the injury must be ‘fairly traceable to the
challenged action of the defendant’; and (3) ‘it must be likely,
as opposed to merely speculative, that the injury will be
redressed by a favorable decision.’” NB ex rel. Peacock v.
6
District of Columbia, 682 F.3d 77, 81 (D.C. Cir. 2012) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).
An organization asserting standing on its own behalf must meet
the same standard, demonstrating “‘concrete and demonstrable
injury to [its] activities[]’” beyond “‘a mere setback to [its]
abstract social interests.’” PETA v. Department of Agriculture,
797 F.3d 1087, 1093 (D.C. Cir. 2015) (quoting Equal Rights
Center v. Post Properties, Inc., 633 F.3d 1136, 1138 (D.C. Cir.
2011)).
The Humane Society and its members easily surmount this
bar. Each alleges a concrete, pecuniary injury. In its complaint,
the Humane Society alleges that, absent a more rigorous
inspection regime, it must “redirect its limited time and
resources away from existing horse protection work to identify,
investigate, publicize and counteract continuing soring
activities.” See id. at 1094 (organization suffers injury in fact
when “the agency’s action or omission to act injured the
organization’s interest” and “the organization used its
resources to counteract that harm” (cleaned up)). And the
Humane Society’s members allege precisely the competitive
harm Congress sought to eliminate with the Horse Protection
Act: unable to compete with trainers who sore their horses with
impunity, the individual plaintiffs have abandoned equestrian
activities including exhibition and commercial training. See 15
U.S.C. § 1822 (“The Congress finds and declares that . . .
horses shown or exhibited which are sore, where such soreness
improves the performance of such horse, compete unfairly with
horses which are not sore.”). “We repeatedly have held that
parties suffer constitutional injury in fact when agencies lift
regulatory restrictions on their competitors or otherwise allow
increased competition.” Louisiana Energy & Power
Authority v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998).
7
To plead traceability, a plaintiff seeking to enforce
procedural rulemaking requirements must demonstrate only “a
causal relationship between the final agency action and the
alleged injuries.” Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C.
Cir. 2014). The Humane Society and its members have done
just that by pointing to the OIG report, which found that agency
licensure of inspectors consistent with the final rule “would
generally improve [the agency’s] ability to enforce the Horse
Protection Act.” OIG Report at 3. Facing pecuniary harm from
the rule’s withdrawal, the Humane Society and its members
have standing to challenge it.
III.
To foster public participation and facilitate reasoned
decisionmaking, “the Administrative Procedure Act requires
agencies to afford notice of a proposed rulemaking and an
opportunity for public comment prior to a rule’s promulgation,
amendment, modification, or repeal.” American Hospital
Association v. Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987).
Providing for notice and comment before repeal of a final rule
“ensures that an agency will not undo all that it accomplished
through its rulemaking without giving all parties an opportunity
to comment on the wisdom of repeal.” Consumer Energy
Council of America v. FERC, 673 F.2d 425, 446 (D.C. Cir.
1982).
As the government emphasizes, for the past three decades
incoming presidential administrations have quietly withdrawn
rules awaiting Federal Register publication without observing
this procedural requirement. See Regulatory Freeze Pending
Review, 82 Fed. Reg. 8,346 (Jan. 24, 2017); Regulatory
Review, 74 Fed. Reg. 4,435 (Jan. 26, 2009); Regulatory
Review Plan, 66 Fed. Reg. 7,702 (Jan. 24, 2001); Regulatory
Review, 58 Fed. Reg. 6,074 (Jan. 25, 1993). In some cases,
8
agencies have withdrawn these rules during internal OFR
processing without ever releasing them to the public; in others,
as here, they have done so after making the rule available for
public inspection as a final rule. The government contends, and
the district court agreed, that only publishing a rule in the
Federal Register triggers the APA’s requirement to undertake
notice and comment to repeal it. The Humane Society, for its
part, contends that the rule here became final when OFR made
it available for public inspection or even earlier when the
Department of Agriculture posted it on its website. We must
decide when a rule passes this regulatory point of no return.
A.
We begin our analysis with the language of the APA.
Except in limited circumstances not relevant to this case, the
statute’s rulemaking provision guarantees the public notice and
an opportunity to participate in agency “rule making.” 5 U.S.C.
§ 553. The statute defines “rule making” as an “agency process
for formulating, amending, or repealing a rule.” 5 U.S.C.
§ 551(5). It in turn defines a “rule” as “an agency statement of
general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy.” 5 U.S.C.
§ 551(4). Thus, once an agency makes a rule—that is, once it
makes a statement prescribing law with future effect—the APA
requires the agency to provide notice and an opportunity for
comment before repealing it.
To assess the government’s claim that only Federal
Register publication creates a rule, we look to the statute that
governs such publication. Enacted in 1935 and codified in
1968, the Federal Register Act mandates publication of
presidential proclamations and agency regulations with general
applicability and legal effect. Pub. L. No. 74-220, 49 Stat. 500;
see Act of Oct. 22, 1968, Pub. L. No. 90-620, 82 Stat. 1238. As
9
amended, it requires agencies to transmit to OFR the original
and copies of any document required to be published in the
Federal Register. 44 U.S.C. § 1503. Under OFR’s regulations,
the document is then “held for confidential processing until it
is filed for public inspection.” 1 C.F.R. § 17.1. Then, OFR must
make a copy “immediately available for public inspection in
the Office” and “cause to be noted on the original and duplicate
originals or certified copies of each document the day and hour
of filing.” 44 U.S.C. § 1503.
The Federal Register Act also sets forth the legal
consequences of each step in this process. Making a document
available for public inspection “is sufficient to give notice of
the contents of the document to a person subject to or affected
by it.” 44 U.S.C. § 1507. A document “is not valid as against a
person who has not had actual knowledge of it until . . . [it is]
made available for public inspection.” Id. Federal Register
publication then “creates a rebuttable presumption” that the
document was “duly issued, prescribed, or promulgated” and
that it was properly “made available for public inspection at the
day and hour stated in the printed notation.” Id.Far from bolstering the government’s position, the Federal
Register Act forecloses its argument that an agency prescribes
a rule only once the rule is published in the Federal Register.
The statute repeatedly distinguishes between the publication of
a document and its issuance, prescription, or promulgation. For
example, Federal Register publication only “rebuttabl[y]”—
and not conclusively—establishes that a published document
was duly prescribed. Id. In its provision governing transmittal
of agency documents to OFR, the Federal Register Act also
creates special procedures for when a document “is issued,
prescribed, or promulgated outside the District of Columbia.”
44 U.S.C. § 1503. Similarly, the statute defines a “document”
transmitted by an agency to OFR to include “an order,
10
regulation, [or] rule” that has been “issued, prescribed, or
promulgated by a[n] . . . agency.” 44 U.S.C. § 1501. In other
words, the statute contemplates that a rule may be prescribed
before publication in the Federal Register.
Confronted with this language at oral argument,
government counsel conceded that “a rule can be issued,
prescribed, or promulgated without publication in the Federal
Register or prior to publication in the Federal Register.”
Recording of Oral Arg. 1:06:28–1:07:21. Given this
concession and the statute’s plain language, it is difficult to see
what of the government’s statutory argument remains. The
APA requires notice and comment before “repealing a rule.” 5
U.S.C. §§ 551(5), 553. If an agency can prescribe a rule
without publishing it, then publication cannot mark the point at
which the requirement to undertake notice and comment before
repeal attaches.
Rather than set the critical date at the date of publication,
the Federal Register Act sets it at the date a rule is filed for
public inspection. That is the “day and hour” the statute
requires be noted for posterity. 44 U.S.C. § 1503. It is then that
a rule becomes “valid” against the public at large. 44 U.S.C.
§ 1507. And it is filing a document for public inspection, not
publication in the Federal Register, that the statute deems
“sufficient to give [constructive] notice” of the document to
affected parties. Id. Making a rule available for public
inspection, then, provides notice to the public and carries legal
consequences. By contrast, publication in the Federal Register
serves an essentially evidentiary rather than legal function. It
creates a “rebuttable presumption” that the published document
is a “true copy” of one already “duly issued, prescribed, or
promulgated” and that it “was filed with the Office of the
Federal Register and made available for public inspection at the
day and hour stated in the printed notation.” Id.11
Contemporaneous executive-branch opinions support this
straightforward reading of the statute. An opinion by the
Attorney General just three months after the Federal Register
Act’s enactment concluded that regulations are “valid and
operate as constructive notice . . . as soon as they have been
filed . . . and made available for public inspection[,] . . . and
that publication in the Federal Register is not essential to their
validity.” Questions Arising in the National Archives
Establishment Under the Federal Register Act, 38 U.S. Op.
Att’y Gen. 359, 361 (1935). Indeed, the first regulations
governing public inspection and publication under the Federal
Register Act designated some agency documents of general
applicability and legal effect to be made available for public
inspection but not published. Federal Register Regulations, 3
Fed. Reg. 1,209, 1,221 (May 28, 1938) (requiring that
Securities and Exchange Commission forms “shall be filed . . .
for public inspection, but only a notation of the fact of filing
shall be published in the Federal Register”). Several years after
the statute’s codification, the Office of Legal Counsel, echoing
the Attorney General’s decision decades before, wrote that
“under the terms of the statute, it seems clear that filing with
the Federal Register constitutes promulgation of a regulation
even though publication may not occur until a later date.”
Federal Register Act—Date of ‘Promulgation’ of Law
Enforcement Assistance Administration Regulations, 1 U.S.
Op. O.L.C. 12 (1977). Although recent administrations have
taken a different view when doing so served their interests, that
view is unpersuasive considering the statutory text and history.
The government also relies on the Freedom of Information
Act, which provides that a person may not “be adversely
affected” by a rule wrongly withheld from publication
“[e]xcept to the extent that a person has actual and timely notice
of the terms thereof.” 5 U.S.C. § 552(a). This qualified
limitation on the government’s enforcement authority has no
12
bearing on the Federal Register Act’s more specific provisions
that give legal effect to the date a rule is made available for
public inspection. But in any case, both the Federal Register
Act and FOIA contemplate prepublication enforcement against
parties with actual notice, a proposition incompatible with the
government’s view that an agency prescribes law only by
Federal Register publication. The government has repeatedly
(and often successfully) invoked this authority in criminal
prosecutions for violations of unpublished rules. See, e.g.,
United States v. Ventura-Melendez, 321 F.3d 230, 233 (1st Cir.
2003) (affirming criminal conviction on the ground that
defendant had actual notice of unpublished rule); United
States v. Bowers, 920 F.2d 220, 222–23 (4th Cir. 1990) (same);
United States v. Mowat, 582 F.2d 1194, 1201–03 (9th Cir.
1978) (same); United States v. Aarons, 310 F.2d 341, 348 (2d
Cir. 1962) (same). The dissent seeks to minimize these cases
because, in its view, they “involved something other than
substantive rules.” Dissenting Op. at 13. But the courts
deciding them characterized the rules at issue as “‘substantive
rules of general applicability’” for which Federal Register
publication was required. Mowat, 582 F.2d at 1199 (quoting 5
U.S.C. § 552(a)(1)(D)); see also Aarons, 310 F.2d at 347(“There appears to be no basis for doubting that the Coast
Guard’s Special Notice is a ‘rule’ within the definition found
in § 2(c) of the APA . . . .”).
The government sees no contradiction between its claimed
powers to enforce unpublished rules and to withdraw those
rules without abiding the APA’s procedural requirements.
Instead, it contends that “the statutes give the agency the
flexibility to enforce [a] rule[] without waiting for publication
where (1) the agency treats an unpublished requirement as final
and enforceable, and in fact attempts to enforce it, and (2) the
subject of the enforcement action has actual knowledge of the
unpublished rule.” Appellees’ Br. 48–49. This position—that
13
the enforceability of an unpublished rule turns solely on
whether the government chooses to enforce it—does not
comport with even the most impoverished notions of due
process. Essentially, the government takes the view that a rule
filed for public inspection and awaiting publication exists in a
state of superposition like Schrödinger’s cat—simultaneously
law and not law until the agency publishes or withdraws it.
Nor do we have any trouble rejecting the government’s
argument that we should adopt one standard for immediately
effective rules and a different standard for rules (like this one)
with an effective date after publication. Most important, that
distinction finds no support in the statute. The APA’s definition
of a rule includes legal prescriptions that carry only “future
effect.” 5 U.S.C. § 551(4). And under the Federal Register Act,
making a document available for public inspection “give[s]
notice of the contents of the document to a person subject to or
affected by it” regardless of when the document becomes
effective. 44 U.S.C. § 1507.
The government’s proposed distinction based on a rule’s
effective date also contravenes our precedent. Like an enacted
statute, which becomes “valid law” once enacted even if not
yet “effective,” see United States v. Brundage, 903 F.2d 837,
843 (D.C. Cir. 1990), a duly prescribed rule is law even if it
sets a future effective date. And we have repeatedly held that
“an order delaying [a] rule’s effective date . . . [is] tantamount
to amending or revoking a rule.” Clean Air Council v. Pruitt,
862 F.3d 1, 6 (D.C. Cir. 2017) (per curiam); see, e.g.,
Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802,
813, 816 (D.C. Cir. 1983) (“a suspension of the effective date
of regulation . . . may be reviewed in the court of appeals as the
promulgation of a regulation” and “is normally subject to APA
rulemaking requirements”); Council of Southern Mountains,
Inc. v. Donovan, 653 F.2d 573, 582 (D.C. Cir. 1981) (per
14
curiam) (absent good cause an agency must “follow notice and
comment procedures” to “postpone the implementation date”
of a rule). Under these precedents, a rule becomes law when
duly prescribed, not when it goes into effect.
B.
The dissent takes issue with our statutory analysis,
contending that the APA’s rulemaking provisions “strongly
suggest” that publication marks the point at which an agency
must undertake notice and comment to repeal a rule. Dissenting
Op. at 6. Glossing over the APA’s definitions of a “rule” and
“rule making,” the dissent rests its argument on the statute’s
requirement that “[t]he required publication or service of a
substantive rule shall be made not less than 30 days before its
effective date.” 5 U.S.C. § 553(d). In its view, the Federal
Register Act is “obsolete,” and this “later, more specific”
language supersedes it. Dissenting Op. at 5 (first quote); id. at
11 (second quote).
We disagree. For one, the dissent’s chronology is
backwards. Although Congress first enacted the Federal
Register Act in 1935, it codified the statute without substantial
change in 1968, more than two decades after the APA’s
enactment and two years after its codification. See Act of
Oct. 22, 1968, Pub. L. No. 90-620, 82 Stat. 1238 (codifying the
Federal Register Act); Administrative Procedure Act, Pub. L.
No. 79-404, 60 Stat. 237 (1946); Act of Sept. 6, 1966, Pub. L.
No. 89-554, 80 Stat. 378 (codifying the APA). Even more
important, the APA’s requirement that certain rules be
published thirty days before their effective date says nothing
about when those rules become rules. As explained above,
longstanding precedent holds that once an agency prescribes a
rule, it must provide notice and comment before repealing it,
even if the rule’s effective date has yet to pass. See Clean Air
15
Council, 862 F.3d at 6; Environmental Defense Fund, 713 F.2d
at 813.
The dissent’s reference to the Congressional Review Act
is more puzzling. Like the APA, that statute requires some
action (namely, a report to Congress) before the effective date
of certain rules. See 5 U.S.C. § 801. And like the requirement
that agencies publish certain rules thirty days before their
effective date, the congressional reporting requirement has
nothing to do with the question here: when an agency has
prescribed a rule and thus must undertake notice and comment
to repeal it. But unlike the APA’s requirements, the
congressional reporting requirement has nothing to do with
publication either. The only significance of Federal Register
publication under the Congressional Review Act is that a so-
called major rule may take effect sixty days after the later of
when Congress receives the required report or when “the rule
is published in the Federal Register, if so published.” 5 U.S.C.
§ 801(a)(3).
The dissent’s argument suffers from still another defect:
many rules are exempt from the APA’s requirement that
substantive rules be published thirty days before their effective
date, including any rule that “relieves a restriction” or for
which an agency finds “good cause” to avoid delay. 5 U.S.C.
§ 553(d). Thus, even for substantive rules, publication is not a
hard-and-fast prerequisite for a rule to become effective. The
Congressional Review Act, too, allows a rule to take effect
immediately if the President determines that certain conditions
are met or an agency finds “good cause.” See 5 U.S.C.
§§ 801(c)(1), 808.
Our dissenting colleague is “not aware” of any case in
which an agency has invoked these exemptions to make a
substantive rule effective before publication. Dissenting Op. at
16
13–14. But as recently as last year, the Centers for Disease
Control and Prevention did just that in its order requiring face
masks on public transportation. Citing the ongoing public
health emergency, the CDC’s order took effect February 1,
2021—the day it was filed for public inspection and two days
before its Federal Register publication. Requirement for
Persons to Wear Masks While on Conveyances and at
Transportation Hubs, 86 Fed. Reg. 8,025, 8,030 (Feb. 3, 2021);
see also Health Freedom Defense Fund, Inc. v. Biden, No. 21-
cv-1693, 2022 WL 1134138, at *12 (M.D. Fla. Apr. 18, 2022)
(explaining that while the CDC initially claimed, in the
alternative, that its order did not qualify as a rule, the
government “abandoned” that position in litigation). Other
agencies routinely prescribe rules with effective dates before
publication, including substantive rules for which agencies
must and do provide notice and an opportunity for comment.
See, e.g., 2022-2023 Annual Specifications and Management
Measures for Pacific Sardine, 87 Fed. Reg. 39,384 (July 1,
2022) (seasonal fishing rule effective on date of public
inspection following notice and comment); Pacific Halibut
Fisheries Catch Sharing Plan, 87 Fed. Reg. 19,007 (Apr. 1,
2022) (same).
In a last-ditch effort, the dissent argues that we should find
the statutory scheme ambiguous and defer to OFR’s
regulations. Those regulations, however, are entirely consistent
with our opinion. They permit an agency to withdraw “[a]
document that has been filed for public inspection with the
Office of the Federal Register but not yet published” through a
“timely letter, signed by a duly authorized representative of the
agency.” 1 C.F.R. § 18.13(a). But as the dissent observes, many
types of documents are published in the Federal Register, not
only rules requiring notice and comment to repeal, and many
such documents may lawfully be withdrawn on the eve of
publication. See Dissenting Op. at 10–11. OFR’s regulations
17
on the form and timing of such withdrawal simply say nothing
about whether the APA—a statute OFR lacks authority to
administer—requires notice and comment before an agency
does so. These regulations also provide, for example, that “[a]
document may be accepted for filing for public inspection and
publication if it is on bond or similar quality paper, legible, and
free of adhesive or correction tape.” 1 C.F.R. § 18.4(a). But it
would be absurd to suggest that an agency therefore need not
allow notice and comment so long as it transmits a rule to OFR
on bond paper.
C.
Finding nothing in the relevant statutes to commend the
government’s position, we turn to the government’s argument
that precedent compels it.
Only one of our cases has addressed when an agency must
go through notice and comment to withdraw an unpublished
rule. In Kennecott Utah Copper Corp. v. Department of
Interior, we rejected a host of procedural and substantive
challenges to natural resource damage assessment regulations.
88 F.3d 1191 (D.C. Cir. 1996) (per curiam). Among the many
petitioners’ many arguments, industry groups contended that
the agency had unlawfully withdrawn a draft rule while the
document underwent confidential OFR processing. Id. at 1205,
1207–09. Rejecting that argument, we explained that an agency
does not prescribe a rule by “internally approv[ing] a draft
version of the final regulations,” meaning that the unpublished
document “never became a rule subject to amendment or
repeal.” Id. at 1208–09. Unlike the rule here, the document in
Kennecott was never made available for public inspection. Id.
at 1201.
Notwithstanding Kennecott’s facts, the government and
the dissent claim our statement that the agency merely
18
“rejected a document that had not yet been published” controls
this case. Id. at 1208–09. This argument, however, seeks to
elevate a single descriptive sentence to a major (apparently
unreasoned) holding. Dissenting Op. at 3. In Kennecott, we did
not purport to decide whether a rule that has been made
available for public inspection requires notice and comment to
repeal for a simple reason: the rule at issue had never been
made available for public inspection. To the contrary, as we
emphasized, the agency had only “internally approve[d]” the
draft rule. Id. at 1208. Indeed, the parties in Kennecott never
even briefed the significance of public inspection. As the
Supreme Court has recently reminded us, “respect for past
judgments also means respecting their limits.” Brown v.
Davenport, 142 S. Ct. 1510, 1528 (2022). We decline to read
Kennecott, as the dissent would, to resolve an important
statutory question “on the basis of a handful of sentences
extracted from [a] decision[] that had no reason to pass on the
argument.” Id.The dissent points to several of our decisions addressing
when a rule becomes final for purposes of judicial review.
Those decisions, however, dealt only with the meaning of
“promulgation” in particular statutory review provisions, a
question unrelated to when notice-and-comment requirements
attach. In one case, for example, we “distinguished between
‘issuance’ and ‘promulgation’” as those terms were used in an
agency’s organic statute “to determine the timeliness of a
petition for review.” National Association of Manufacturers v.
NLRB, 717 F.3d 947, 953–54 (D.C. Cir. 2013) (quoting
National Grain & Feed Association v. OSHA, 845 F.2d 345,
345 (1988) (per curiam)). In other contexts, we have defined
promulgation to mean a date earlier than Federal Register
publication. See, e.g., American Petroleum Institute v. Costle,
609 F.2d 20, 22–24 (D.C. Cir. 1979) (per curiam) (“‘the date
of such promulgation’ means the date that the rule is signed and
19
distributed to the press and public”); see also National
Association of Manufacturers, 717 F.3d at 953–54 (“the time
of filing with the Office of the Federal Register” is the
appropriate date for “testing the validity of the Board’s rule”);
Saturn Airways, Inc. v. Civil Aeronautics Board, 476 F.2d 907,
909 (D.C. Cir. 1973) (per curiam) (concluding that an
unpublished rule was ripe for review once an agency
communicated its content to the public).
Looking outside our circuit, the government points to two
immigration cases involving a withdrawn rule, but neither
conflicts with the position we adopt here. The Second and
Ninth Circuits concluded that a withdrawn rule “never became
effective” because its effective date “was never filled in.”
Zhang v. Slattery, 55 F.3d 732, 749 (2d Cir. 1995); accord
Chen v. INS, 95 F.3d 801, 805 (9th Cir. 1996). As government
counsel conceded at oral argument, those cases did not decide
when an agency must comply with the APA’s procedural
requirements in withdrawing a rule before publication.
Recording of Oral Arg. 59:44–1:00:58.
Adopting the government’s view that a rule requires notice
and comment to repeal only once it is published in the Federal
Register, however, would place us in conflict with one of our
sister circuits. Reasoning that the “lack of formal publication
does not preclude the effectiveness of an otherwise valid
agency action,” the Fifth Circuit has held that “after
announcement of a rule,” an agency must allow notice and
comment if it chooses to “reconsider.” Arlington Oil Mills,
Inc. v. Knebel, 543 F.2d 1092, 1099–1100 (5th Cir. 1976).
Thus, the only on-point out-of-circuit precedent comports with
our interpretation of the APA.
20
D.
Confident that the statute so commands and unobstructed
by precedent, we hold that agencies may repeal a rule made
available for public inspection in the Office of the Federal
Register only after complying with the APA’s procedural
requirements. The Department failed to do so when it withdrew
its final rule without providing notice and an opportunity for
comment or invoking a statutory exemption.
We take a moment now to emphasize the limits of our
decision. Because the rule was final once OFR made it
available for public inspection, we need not address the
Humane Society’s alternative argument that it passed this
threshold even earlier when the Department posted the rule on
its website. Nor do we have occasion to decide when APA
procedures attach to rules not yet on public inspection but
enforceable against those with actual notice. Finally, because
the parties agree that success on the Humane Society’s APA
claim would give it all the relief it seeks, we decline to reach
its alternative argument that OFR violated its regulations under
the Federal Register Act.
Of course, we recognize that our decision may necessitate
some changes in agency practice. For example, agencies may
need to ensure typographical errors and any defects in form are
corrected during internal OFR processing, rather than in the
brief period between public inspection and publication. But
that is as far as it goes. The dissent’s hand-wringing about the
remedy in this case has a simple answer: the case is like any
other in which an agency repeals a rule without notice and
comment and a court holds that it was wrong to do so. See, e.g.,
Environmental Defense Fund, 713 F.2d at 818 (holding that an
agency order that had the effect of repealing a prior rule “must
be vacated” because it “was invalid . . . for the omission of
21
notice and an opportunity for comment”). The possibility of
some logistical difficulties in no way undermines “the
fundamental principle that the government must follow the
law.” Sault Ste. Marie Tribe of Chippewa Indians v. Haaland,
25 F.4th 12, 20 (D.C. Cir. 2022).
IV.
The APA demands procedural regularity both when an
agency formulates new law and when it repeals the old.
Although political transitions may provide a sound basis for a
change in policy, they do not relieve agencies of their
procedural obligations. Because a rule made available for
public inspection prescribes law with legal consequences for
regulated parties, the APA requires the agency to undertake
notice and comment before repealing it. We reverse the district
court’s order to the contrary and remand for further
proceedings consistent with this opinion.
So ordered.
RAO, Circuit Judge, dissenting: Across administrations
and for many decades, Executive Branch agencies have
exercised their discretion to withdraw rules before publication
in the Federal Register—sometimes due to a presidential
transition, but also in the ordinary course of rulemaking. In this
case, the United States Department of Agriculture (“USDA”)
withdrew a rule after it was made available for “public
inspection” at the Office of the Federal Register, but before it
was published. The majority holds that this withdrawal was the
“repeal” of a rule requiring notice and comment procedures
because the agency’s rule was prescribed at the moment of
public inspection. But we have never assessed a rule’s finality
or the end of the rulemaking process from public inspection at
the regulatory printing press. To the contrary, publication
determines the adoption, finality, and effectiveness of a
substantive rule.
By cutting off agency discretion at public inspection—a
mere ministerial moment on the way to publication—the
majority imposes a judicial burden on agency procedures that
conflicts with this circuit’s precedent, the statutory framework
for rulemaking, and a longstanding regulation permitting
withdrawals prior to publication. I respectfully dissent.
I.
The timeline here is undisputed and detailed by the
majority, but I provide a brief overview to situate USDA’s
withdrawal in the rulemaking process. Following a period of
notice and comment, USDA completed a substantive rule to
prevent the abusive practice of “soring” show horses. 1 USDA
sent the rule to the Office of the Federal Register (“OFR”),
1
USDA acted under its rulemaking authority delegated in the Horse
Protection Act of 1970, Pub. L. No. 91-540, § 9, 84 Stat. 1404, 1405
(codified at 15 U.S.C. § 1828).
2
where it was made available for public inspection on January
19, 2017, and scheduled for publication on January 24.
On January 20, President Trump took office and that day
instituted a regulatory freeze, requiring agencies to withdraw
all rules that had been sent to OFR but not yet published.
Regulatory Freeze Pending Review, 82 Fed. Reg. 8,346(effective Jan. 20, 2017). On January 23, USDA informed OFR
that it was withdrawing the horse soring rule, and OFR did not
publish it.
The Humane Society sued, claiming USDA had
unlawfully repealed a final rule without the notice and
comment required by the Administrative Procedure Act
(“APA”). See 5 U.S.C. § 553. The Humane Society asked the
district court to vacate USDA’s withdrawal of the horse soring
rule and compel publication in the Federal Register. The
district court dismissed the suit. Humane Soc’y of the U.S. v.
USDA, 474 F. Supp. 3d 320 (D.D.C. 2020). The court
explained that USDA did not need notice and comment to
withdraw the rule because it had not been published and
because, under the relevant statutes and precedents, a rule is
generally not a “finalized, legislative rule” until “publication in
the Federal Register.” 2 Id. at 330, 335.
II.
The question in this case is when an agency’s rulemaking
discretion ends—the “point of no return,” as the majority puts
it. Maj. Op. 8.
2
The court also rejected the Humane Society’s claim that OFR was
required by regulation to publish the rule on January 23, but failed to
do so. Id. at 336–37.
3
Circuit precedent provides a ready answer to this question.
USDA’s withdrawal of the horse soring rule before publication
was lawful. We have squarely held that an agency may modify
or withdraw a rule at any point prior to publication in the
Federal Register. In Kennecott Utah Copper Corporation v.
Department of the Interior, we considered the status of a
regulation that had been withdrawn from OFR prior to
publication. 88 F.3d 1191, 1200–01 (D.C. Cir. 1996). Like the
Humane Society, the Kennecott petitioners argued that the
withdrawal was unlawful because the agency had failed to
follow notice and comment procedures. Id. at 1207–08. We
disagreed, explaining that those procedures are required only
to formulate, amend, or repeal a rule, none of which described
the agency’s withdrawal before publication. Id. at 1208 (citing
5 U.S.C. §§ 551(5), 553(b)–(c)). Rather, the agency had merely
“discard[ed]” and “rejected a document that had not yet been
published” and therefore “never became a rule subject to
amendment or repeal.” Id. at 1209 (emphases added). Indeed,
we referred to the withdrawn rule simply as a “document”
because it was never published and therefore “never became a
binding rule requiring repeal or modification.” See id. at 1208.
Discussing a related issue, we further explained that the
agency’s “decision to withdraw the document did not alter
substantive legal obligations under previously published
regulations,” and therefore the withdrawal “did not constitute a
‘regulation’” that would have required notice and comment
procedures. See id.
It follows squarely from Kennecott’s holding and logic
that USDA was entitled to withdraw its horse soring rule
without notice and comment. Because the rule was never
published in the Federal Register, it was never promulgated by
USDA, never altered the substantive legal obligations of
private parties, and never became a binding regulation
requiring notice and comment to repeal. Id. at 1207–09.
4
The majority attempts to cabin Kennecott to its facts,
emphasizing that the document in that case had been sent to
OFR but had not been made available for public inspection.
Maj. Op. 17–18. This is a distinction without a difference. In
Kennecott, this court did not rely on public inspection, but
instead drew a sharp line between documents sent to OFR on
the one hand, and “binding” regulations published in the
Federal Register on the other. See Kennecott, 88 F.3d at 1208.
We explained that before publication, a document sent to OFR
could not be considered a “binding rule” because if it were,
then “whenever agencies propose rules, receive comments
from the public, and internally approve a draft version of the
final regulations, the APA would prevent agencies from
discarding those documents without again requesting public
comment.” Id. What made the document a “binding rule
requiring repeal” was publication in the Federal Register. Id.It was thus necessary to our decision that a substantive rule
could be withdrawn without notice and comment if it was “not
yet … published” in the Federal Register. See id. at 1208–09.
This “ratio decidendi” carries “the force of law.” Ramos v.
Louisiana, 140 S. Ct. 1390, 1404 & n.54 (2020) (cleaned up);
see also Citizens for Responsibility and Ethics in Wash. v.
Dep’t of Justice, 846 F.3d 1235, 1244 (D.C. Cir. 2017)
(rejecting attempts to cabin Kennecott to its facts, instead
following its “necessar[y]” and “essential” reasoning in the
Freedom of Information Act context). Although USDA’s horse
soring rule was one step closer to publication than the rule in
Kennecott, that fact is irrelevant under Kennecott’s reasoning.
“[W]e are not at liberty to rewrite circuit precedent in the way
[the majority] desires” through a stinting reading of precedent.
See Ali v. Trump, 959 F.3d 364, 372 (D.C. Cir. 2020).
5
USDA’s rule never made it to the finish line. Under
Kennecott, the withdrawal before publication in the Federal
Register did not require notice and comment procedures.
III.
Even if we were writing on a clean slate, the relevant
statutes and a longstanding regulation give agencies discretion
to withdraw substantive rules at any point before publication in
the Federal Register without notice and comment. Latching
onto a provision in the Federal Register Act that is obsolete
with respect to substantive rules, the majority picks public
inspection as the point of no return. Rather than rely on the
generic requirements governing our regulatory printing press, I
would look to statutes that govern the rulemaking process and
the established judicial precedent setting the finality of agency
action at publication. Because a rule is adopted and final at
publication, agencies retain discretion to modify or to withdraw
rules until that point. At most, the relevant statutes are silent on
this question, and a longstanding regulation reasonably fills
that gap, permitting agencies to withdraw regulations until
publication.
A.
Rules and rulemaking come in many different species and
subspecies, and the majority’s arguments depend on glossing
over distinctions between substantive rules of general
applicability, such as USDA’s rule, and other administrative
actions. The APA broadly defines a “rule” to include “an
agency statement of general or particular applicability and
future effect designed to implement, interpret, or prescribe law
or policy.” 5 U.S.C. § 551(4). “Rules” also include descriptions
of agency “organization, procedure, or practice,” and the
approval of rates and wages. Id. “Rule making” is defined
simply as the “agency process for formulating, amending, or
6
repealing a rule.” Id. § 551(5). Contrary to the majority’s
assertions, these basic definitions say nothing about when the
rulemaking process ends for substantive rules of general
applicability.
The specific statutory requirements for substantive rules
are more germane to the question at hand and strongly suggest
that publication is the point at which an agency no longer has
discretion to withdraw or to modify a rule. These provisions
state that “[s]ubstantive rules of general applicability adopted”
by an agency must be “publish[ed] in the Federal Register.” 5
U.S.C. § 552(a)(1)(D). Such rules cannot have legal effect
against the general public until publication. See id. § 552(a)(1)
(“[A] person 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.”). Moreover, the
APA specifically requires, subject to certain exceptions not
applicable here, that “[t]he required publication … of a
substantive rule shall be made not less than 30 days before its
effective date.” Id. § 553(d). While the APA provides
exceptions to notice and comment and to the delayed effective
date requirement, there is no exception for the requirement that
substantive rules must be published in the Federal Register.
Compare id. § 553(a), (b)(A)–(B), (d)(1)–(3), with id.
§ 552(a)(1)(D). Taken together, these provisions place
significant weight on publication for marking the adoption,
finality, and eventual effectiveness of a rule. The APA provides
no other benchmark for the end of the rulemaking process. It
logically follows that, absent any other statutory or regulatory
provision, an agency’s rulemaking discretion continues up
until the point of publication.
In a variety of contexts, we have reaffirmed this common-
sense conclusion that publication is the moment a substantive
rule is promulgated and becomes final agency action.
7
For instance, the filing window for seeking judicial
review of agency action often commences from the time an
agency promulgates or prescribes a rule. See, e.g., 15 U.S.C.
§ 78y(b)(1) (allowing judicial review of Securities and
Exchange Commission rules within 60 days of
“promulgation”). We have consistently held that such filing
windows begin to run upon publication because
“‘promulgation’ is accorded its ordinary meaning—i.e.,
publication in the Federal Register.” Horsehead Res. Dev. Co.
v. EPA, 130 F.3d 1090, 1093 (D.C. Cir. 1997) (cleaned up); see
also, e.g., Nat’l Grain & Feed Ass’n v. OSHA, 845 F.2d 345,
346 (D.C. Cir. 1988) (per curiam) (“Based on the plain
meaning of [a filing window statute], the ordinary usage of the
term promulgate, and the lack of any specific agency regulation
defining the date of promulgation, we conclude that [a rule] is
promulgated on the date that it is published in the Federal
Register.”).
Similarly, courts may review only “final agency action.” 5
U.S.C. § 704. No one questions that publication of a
substantive rule constitutes the “consummation of the agency’s
decisionmaking process.” See Bennett v. Spear, 520 U.S. 154,
177–78 (1997) (cleaned up). For the purposes of exercising
judicial review, we have consistently understood publication in
the Federal Register as the relevant moment a substantive rule
becomes final agency action. See, e.g., FTC v. Standard Oil Co.
of Cal., 449 U.S. 232, 239 (1980) (explaining “publication” of
regulations constituted “final agency action subject to judicial
review”); Nat. Res. Def. Council v. Wheeler, 955 F.3d 68, 78
(D.C. Cir. 2020) (finding a rule “published in the Federal
Register … was the culmination” of an agency’s rulemaking
process); Nat. Res. Def. Council v. EPA, 706 F.3d 428, 433
(D.C. Cir. 2013) (holding the EPA “consummated the
decisionmaking process … only when it published its final
views”); Pub. Citizen Health Rsch. Grp. v. Comm’r, FDA, 740
8
F.2d 21, 33 (D.C. Cir. 1984) (finding a rule insufficiently final
because, among other things, it “had not been published” and
“further administrative proceedings [were] contemplated”).
Our focus has always been on when the rulemaking process has
ended “to prevent premature judicial intervention in the
administrative process.” Pub. Citizen, 740 F.2d at 30. 3
In other contexts, this court and our sister circuits have
recognized that publication is the point at which a regulation is
final and legally binding and therefore marks the end of an
agency’s rulemaking process. See, e.g., Nat. Res. Def. Council
v. EPA, 559 F.3d 561, 565 (D.C. Cir. 2009) (“Agencies must
publish substantive rules in the Federal Register to give them
effect” as “[a]n unpublished final rule … can have no legal
consequences.”); Am. Petroleum Inst. v. EPA, 216 F.3d 50, 68
3
The majority cites a few cases purporting to hold that promulgation
can “mean a date earlier than Federal Register publication.” Maj. Op.
18–19. But these cases either decline to address the question of when
a rule is “promulgated” or arise in specific statutory contexts
unrelated to the finality of agency discretion over substantive rules.
In National Association of Manufacturers v. NLRB, we considered
the question of an agency’s rulemaking authority after losing a
quorum and said we “need not determine when the Board’s rule was
‘promulgated.’” 717 F.3d 947, 954 (D.C. Cir. 2013). In American
Petroleum Institute v. Costle, we analyzed the “context and purpose”
of a specific statutory provision to conclude an agency could not add
to the administrative record after public release of a rule. 609 F.2d
20, 22–24 (D.C. Cir. 1979) (per curiam). And in Saturn Airways, Inc.
v. Civil Aeronautics Board, we made no mention of “promulgation,”
but interpreted a statute specifying the consolidation of judicial
proceedings against the agency’s order. 476 F.2d 907 (D.C. Cir.
1973). None of these cases suggest the end of agency rulemaking
discretion at a point before publication; nor does the majority explain
how these few examples weigh against the countless decisions
setting the finality of substantive rulemaking at publication.
9
(D.C. Cir. 2000) (per curiam) (noting that “publication or lack
thereof in the Federal Register” is helpful when “determining
whether an agency has taken final action”); see also, e.g., Nat.
Res. Def. Council v. Nat’l Highway Traffic Safety Admin., 894
F.3d 95, 106 (2d Cir. 2018) (“It is a basic tenet of
administrative law, set out by the APA, that a substantive
regulation does not have legal effect—that is, it has not been
established authoritatively—until it has been published in the
Federal Register. In other words, a regulation is not prescribed
until it has legal effect, and it does not have legal effect until it
is published in the Federal Register.”) (cleaned up); River
Runners for Wilderness v. Martin, 593 F.3d 1064, 1072 (9th
Cir. 2010) (per curiam) (explaining the agency “did not intend
to announce substantive rules” in part because agency policies
“were not published in the Federal Register”).
We have also frequently observed that agencies retain
discretion over the substance and timing of a regulation until it
is published (consistent, of course, with any specific statutory
requirements). As part of this discretion, regulatory proposals
sometimes “die[] on the vine.” U.S. Fish & Wildlife Serv. v.
Sierra Club, Inc., 141 S. Ct. 777, 786 (2021). We have rejected
calls to micromanage an agency’s regulatory agenda by forcing
it to move forward with any particular regulatory proposal. 4
4
See, e.g., Ass’n of Oil Pipe Lines v. FERC, 83 F.3d 1424, 1432
(D.C. Cir. 1996) (“An agency is free to adjust or abandon its
proposals in light of public comments or internal agency
reconsideration without having to start another round of
rulemaking.”) (cleaned up); WildEarth Guardians v. EPA, 751 F.3d
649, 651 (D.C. Cir. 2014) (“An agency has broad discretion to
choose how best to marshal its limited resources and personnel to
carry out its delegated responsibilities, which means that [an agency]
has discretion to determine the timing and priorities of its regulatory
agenda.”) (cleaned up).
10
Until publication, the agency retains policymaking discretion
over whether, when, and in what form to finalize a rule.
The APA’s requirements and the decisions interpreting
them reinforce a fundamental principle of administration law:
publication is the time at which agency discretion ends and a
substantive rule becomes final.
B.
The majority fails to grapple with these statutory
requirements and longstanding judicial interpretations of the
APA that index a rule’s finality and promulgation to the time
of publication. Instead, the majority relies on a provision in the
1935 Federal Register Act, concluding that a rule is
“prescribed” upon public inspection and therefore cannot be
modified or withdrawn after that point. Maj. Op. 9–10. But the
Federal Register Act is not about rulemaking. It addresses the
nuts and bolts of publication in the Federal Register, including
matters such as the custody and printing of federal documents,
how documents are filed, the distribution and price of the
Federal Register, and which documents must be published. 44
U.S.C. §§ 1502–1505.
Nonetheless, the majority’s entire analysis turns on
Section 7 of the Federal Register Act. See Pub. L. No. 74-220,
§ 7, 49 Stat. 500, 502 (1935) (codified as amended at 44 U.S.C.
§ 1507). This provision states that a “document” (which is
defined to include, but is not limited to, agency rules) “is not
valid as against a person who has not had actual knowledge of
it until” it is “made available for public inspection.” 44 U.S.C.
§ 1507. Section 7 also says that public inspection is “sufficient
to give notice of the contents of the document to a person
subject to or affected by it.” Id. The majority relies on this
provision to conclude that public inspection is the end of an
agency’s rulemaking process because “public
11
inspection … provides notice to the public and carries legal
consequences.” Maj. Op. 10. In other words, the majority finds
that because some documents might be legally effective upon
public inspection, substantive rules must be binding and final
upon public inspection and therefore require notice and
comment to repeal. No “legal consequences” attach upon
public inspection of substantive rules because later, more
specific statutes supersede Section 7.
Whatever Section 7’s application to other regulatory
documents appearing in the Federal Register, this provision
simply does not and cannot apply to substantive rules like the
one USDA withdrew. Section 7 is limited by the APA’s more
specific provision that substantive rules cannot have legal
effect until at least 30 days after publication. 5 U.S.C. § 553(d).
This APA provision directly contravenes Section 7 because, at
least for substantive rules, notice at public inspection is no
longer sufficient for effectiveness. That this consequence
followed from the plain meaning of the APA was understood
at the time of its enactment. See ATTORNEY GENERAL’S
MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 36 (1947)
(explaining that the delayed effective date provision, now
codified at 5 U.S.C. § 553(d), may be interpreted as amending
Section 7 of the Federal Register Act). 5
5
It is puzzling that the majority suggests the 1968 codification of the
1935 Federal Register Act means that it somehow postdates the
APA, which was enacted in 1946 and codified in 1966. Maj. Op. 14–
15. Codification is purely ministerial and does not alter the substance
of enacted legislation, as the majority recognizes. Nothing in the
timing of codification changes the fact that the APA is the more
recent and more specific statute with respect to rulemaking. The
majority’s reliance on the 1935 Attorney General opinion similarly
fails to account for the Attorney General’s reconciliation of the APA
and the Federal Register Act in 1947. See Maj. Op. 11.
12
The majority also disregards the 1996 Congressional
Review Act, which generally prevents “major rules” from
taking effect until after submission to Congress and
publication. Pub. L. No. 104-121, § 251, 110 Stat. 847, 868–69
(codified at 5 U.S.C. § 801(a)(1)(A), (a)(3)(A)). All other non-
major rules similarly cannot take effect until “after submission
to Congress” and “as otherwise provided by law,” which
includes publication. 5 U.S.C. § 801(4); see also id. § 553(d).
These provisions also apply “notwithstanding any other
provision of law.” Id. § 806(a). This further indicates that
finality and the legal effectiveness of substantive rules are
marked from publication. The majority’s reading of Section 7
of the Federal Register Act to conclude that substantive rules
can become effective at public inspection cannot be squared
with these provisions. The APA and the Congressional Review
Act are later enacted and more specific statutes governing the
rulemaking process that supersede anything to the contrary in
Section 7.
At bottom, the majority fails to recognize any distinction
among the types of documents required to be published in the
Federal Register. Unlike substantive rules, some of these
documents are fairly prosaic and do not impact the private
rights of individuals. Public inspection may suffice for certain
types of “documents” to give them legal effect; but it cannot
suffice for the validity and enforcement of substantive rules.
The majority also relies on a dubious claim that the Federal
Register Act and the Freedom of Information Act allow
“prepublication enforcement against parties with actual
notice.” Maj. Op. 12. This claim also cannot apply to
substantive rules of general applicability like the one at issue
here. The majority overstates the government’s position that in
“very rare” cases there could be prepublication enforcement of
13
substantive rules. 6 The cases cited by the Humane Society and
the majority for this proposition do not involve generally
applicable substantive rules affecting private rights. Actual
notice has mattered only for the enforcement of government
actions that either involved something other than substantive
rules, such as military notices and internal agency procedures
and forms, or rules that did not require notice and comment to
promulgate. 7 These cases involve different species of
administrative actions falling within various exceptions to
rulemaking procedures, and therefore are not relevant to the
question in this case.
Neither the parties nor the majority cite any case, and I am
not aware of any, in which actual notice was sufficient for
6
The majority says the government conceded that rules could be
enforced before publication. Maj. Op. 10. At oral argument however,
the government stated only that rules made effective immediately
could be enforced before publication and only in “very rare”
circumstances. Oral Arg. Tr. 36:17–19; see also id. at 44:2–10,
44:23–45:2. USDA’s rule had a delayed effective date, and the
government made no suggestion that in the ordinary course
substantive rules could be enforced before publication.
7
The cases cited by the majority are thus inapposite to the question
presented in this case. See United States v. Ventura-Melendez, 321
F.3d 230, 232–33 (1st Cir. 2003) (unpublished temporary security
zone designation falling within the “military or foreign affairs
function” exception to notice and comment rulemaking); United
States v. Bowers, 920 F.2d 220, 222 (4th Cir. 1990) (unpublished
income tax forms and non-updated publications of Internal Revenue
Service organizational structures); United States v. Mowat, 582 F.2d
1194, 1201–03 (9th Cir. 1978) (unpublished instruction governing
entry onto a military-owned island issued without notice and
comment); United States v. Aarons, 310 F.2d 341, 342–43, 347–48
(2d Cir. 1962) (unpublished letter forbidding civilians from boarding
military submarines without notice and comment).
14
prepublication enforcement of a substantive rule of general
applicability. This is wholly unsurprising because substantive
rules that impose regulatory burdens cannot be effective until
at least 30 days after publication, foreclosing the government
from enforcing them before publication even if affected parties
had notice. The majority cites to regulations issued under the
“good cause” exceptions to notice and comment and delayed
effective date requirements. Maj. Op. 16; see also 5 U.S.C.
§ 553(d)(3). But these exceptions are not at issue in this case
and do not apply to the mine run of regulations. Nor should the
availability of such exceptions limit the scope of agency
discretion for ordinary substantive rules. The majority mixes
up these administrative cats and dogs.
Section 7 of the Federal Register Act must be read in light
of the more specific and recent statutes that directly govern
rulemaking, publication, finality, and the effective dates for
substantive rules, as well as the decisions interpreting those
provisions. The majority imposes public inspection as the
judicial point of no return for regulatory decisionmaking. But
it makes no sense to cut off agency discretion at public
inspection, a point in time that has no legal relevance for
generally applicable substantive rules. Courts have long
understood publication as the time a rule is promulgated and
final. An agency may therefore modify or withdraw a
substantive rule up until the point of publication.
C.
While the best reading of the relevant statutes is that
agency discretion continues until publication, a regulation
implementing the Federal Register Act also explicitly allows
for the prepublication withdrawal of rules, recognizing that
15
agencies have discretion to alter rules until that point. 8 1 C.F.R.
§ 18.13(a). The majority’s holding—that USDA could not
withdraw its rule after public inspection—effectively
invalidates this regulation sub silentio.
But the withdrawal regulation is a reasonable
interpretation of the Federal Register Act and should be upheld.
The regulation provides that agencies may withdraw rules “that
ha[ve] been filed for public inspection … but not yet
published” through a “timely letter, signed by a duly authorized
representative of the agency.” Id. This regulation, or one
substantially similar, has been in place since 1972. See 1 C.F.R.
§ 18.13 (1973). In Kennecott, we explicitly recognized that the
Federal Register Act “says nothing about the OFR’s power to
review or return documents” after filing or before public
inspection and that there was no indication that Congress had
“considered the details of the OFR’s role in processing
documents, including its authority to return documents to the
issuing agency before they are made public.” 88 F.3d at 1206.
Finding the statute silent on this question, we proceeded to
consider the reasonableness of OFR’s Document Drafting
Handbook, which permits withdrawal prior to public
inspection. In concluding that this policy choice was
reasonable, we explained that “[a]llowing agencies to withdraw
documents during the relatively brief processing period is
consistent with the statute’s purposes—establishing an orderly
process for filing and publishing government regulations.” Id.“By permitting agencies to correct mistakes and even to
8
Regulations implementing the Federal Register Act are
promulgated by the Administrative Committee of the Federal
Register, which is comprised of the Archivist of the United States,
the Director of OFR, and other Executive Branch officials. 44 U.S.C.
§ 1506(a).
16
withdraw regulations until virtually the last minute before
public release,” OFR ensures that regulations “are as correct as
possible in both form and substance.” Id. Allowing such
withdrawals at the agency’s discretion “avoids the needless
expense and effort of amending regulations through the public
comment process when those corrections could have been
made more easily before … publication.” Id.Following Kennecott’s logic, the withdrawal regulation in
this case is also reasonable. Withdrawal until publication
serves the same purposes as allowing withdrawal before public
inspection. Namely, it gives agencies the flexibility to correct
errors or to take a different approach. Although nearly all rules
will go straight from public inspection to publication in the
Federal Register, the withdrawal regulation allows agencies to
exercise their discretion until publication. This is a reasonable
policy choice in the face of the Federal Register Act’s silence
on the question of withdrawal. Moreover, for substantive rules
of general applicability, the withdrawal regulation coheres with
the APA and the many precedents cited above that treat
publication as the point at which agency action is final and
agency discretion ends.
Because the longstanding withdrawal regulation is
reasonable, this court has no authority to supplant it with a
contrary rule of its own creation. The majority declines to
address the reasonableness of the regulation or explain why in
the face of the regulation this court may impose additional
requirements on the withdrawal of rules awaiting publication.
Maj. Op. 16–17. It is a “very basic tenet of administrative law”
that courts cannot impose additional procedural requirements
on agencies because “agencies should be free to fashion their
own rules of procedure.” Vermont Yankee Nuclear Power
Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 544 (1978). The
Supreme Court has held there was “little doubt that Congress
17
intended that the discretion of the agencies and not that of the
courts be exercised in determining when extra procedural
devices should be employed.” 9 Id. at 546. Nonetheless, the
majority imposes a previously unknown procedural
requirement on every federal agency by prohibiting the
modification or withdrawal of rules after public inspection
despite the fact that not a single law or regulation requires this
result. 10
V.
Finally, the majority fails to grapple with the implications
of its decision, brushing off the “possibility of some logistical
difficulty.” Maj. Op. 21. Yet the court’s decision contravenes
congressional directives, longstanding Executive Branch
practice, and settled judicial precedents. Such unwarranted
9
Applying the principles of Vermont Yankee, the Supreme Court and
this court have consistently rebuffed the judicial imposition of
administrative procedures. See, e.g., Garland v. Ming Dai, 141 S. Ct.
1669, 1677 (2021) (rejecting a credibility presumption because
“[n]othing in the [statute] contemplates anything like the
embellishment the Ninth Circuit ha[d] adopted”); Perez v. Mortg.
Bankers Ass’n, 575 U.S. 92, 95 (2015) (rejecting this court’s
imposition of notice and comment procedures on interpretive rules);
Nat’l Ass’n of Home Builders v. EPA, 682 F.3d 1032, 1042 (D.C.
Cir. 2012) (explaining courts cannot force agencies to comply “with
a procedural requirement … clearly exclude[d] from [judicial]
purview” pursuant to Vermont Yankee).
10
I would also affirm the district court’s dismissal of the Humane
Society’s claim against OFR for allegedly miscalculating the
publication date of USDA’s rule. At a minimum, the Humane
Society’s complaint did not allege that OFR’s regular processing
schedule applied, and so it failed to adequately allege that OFR had
to publish USDA’s rule on any specific date. See 1 C.F.R. §§ 17.2(b),
17.7.
18
judicial intervention will invariably lead to numerous
disruptions for both agencies and courts.
To begin with, the majority imposes a new endpoint for
agency discretion, but says nothing about the remedy the
district court should apply in this case. If USDA unlawfully
withdrew its horse soring rule in 2017, what happens next?
Does the district court have authority to compel USDA to
resubmit its 2017 rule to the Federal Register? 11 Most of the
rule had an effective date of January 1, 2018. If the 2017 rule
is published, may USDA enforce the rule against private parties
stretching back to the original effective date? If not the original
effective date, what should be the new date? May the district
court set the new date? Does the court have the authority to
order USDA to amend its rule to change the effective date?
Would USDA need to undergo notice and comment to change
the effective date? See Clean Air Council v. Pruitt, 862 F.3d 1, 6
(D.C. Cir. 2017) (per curiam). Because we have not previously
been in the business of reinstating rules withdrawn by
Executive Branch agencies, these questions have no ready
answers.
The remedy question matters because USDA’s horse
soring rule is hardly the only rule withdrawn after public
inspection but before publication in the Federal Register.
Numerous rules were withdrawn after public inspection during
the 2017 presidential transition and during the most recent
transition in 2021. Such withdrawals have occurred at
presidential transitions stretching back at least to the Clinton
Administration, and also occasionally at other times. See Jack
M. Beerman, Midnight Rules: A Reform Agenda, 2 MICH. J.
11
It is unclear what became of the rule after USDA withdrew it. The
record is silent on whether OFR still retains a copy that it could
publish if ordered to do so.
19
ENVT. & ADMIN. L. 285, 335–37 (2013); see also Maj. Op. 7–
8 (recognizing this practice). Under the majority’s decision, all
these rules were withdrawn unlawfully. Can they rise from the
regulatory graveyard as soon as an aggrieved party brings suit?
The decision today also undermines political
accountability. This horse soring rule, sent to OFR by President
Obama’s USDA, was withdrawn at the direction of President
Trump. As this litigation has proceeded, President Biden
assumed office, and his USDA has determined that it does not
agree with the 2017 rule and has said it will begin a new and
improved rulemaking to address horse abuse. See generally
Withdrawal of Proposed Rule, 86 Fed. Reg. 70,755 (Dec. 13,
2021). The majority’s decision today means that a rule that
never took effect may be resurrected (somehow) after more
than five years and despite two intervening presidential
elections. This interferes with the current president’s authority
to control the regulatory agenda of his administration. No
matter that the people have spoken twice—this court has
decided that we will have a horse soring policy from the past.
In addition to undermining Executive Branch
accountability, it is unclear what the consequences of the
majority’s decision are for the timing of judicial review. If a
rule is prescribed at the time that it appears for public
inspection, do tolling periods now also run from public
inspection? Is public inspection now the point at which a
substantive rule is final for purposes of judicial review? The
majority’s decision could create confusion for settled filing
windows and potentially close the courthouse doors to those
who do not regularly check the public inspection desk of the
Federal Register. And the majority’s reasoning about “actual
notice” does not foreclose future litigation about even earlier
dates at which an agency’s rulemaking discretion might end. In
this case the Humane Society pressed that the rule was final
20
when posted to USDA’s website. Could an agency withdraw a
rule after such posting? The majority declines to say. See Maj.
Op. 20. What of an announcement in an agency press release?
Publication in a pamphlet? Agencies and the regulated public
must stay tuned for future decisions of this court.
Finally, the majority’s decision has disturbing
implications for due process in agency enforcement. The
majority reasons that substantive rules of general applicability
can be effective at some point before publication, and that an
agency can enforce a rule against a private party with simple
notice of the rule. But prepublication enforcement of
substantive rules is inconsistent with the APA, and the
government does not seriously contend otherwise. The
majority’s insistence on the availability of prepublication
enforcement endorses an expansive understanding of agency
power, which, if actually exercised, would raise serious due
process concerns for individuals targeted by regulatory
agencies.
* * *
An agency’s ability to modify or to withdraw a regulation
now ends at the public inspection desk of the Federal Register.
By requiring USDA to undergo notice and comment
procedures to withdraw an unpublished substantive rule, the
majority upends longstanding Executive Branch practice and
the fundamental principle, grounded in statute, precedent, and
regulation, that publication in the Federal Register marks the
end of an agency’s rulemaking process. Because the majority’s
decision cannot be reconciled with our law, I dissent.