The Nickel Report

Beginning with the inauguration of Ronald Reagan in 1983, each newly inaugurated president from a different political party than his predecessor has ordered the withdrawal from the Office of the Federal Register (OFR) of all pending regulations that have not yet been published.  86 Fed. Reg. 7425 (Jan. 28, 2021) (Biden); 82 Fed. Reg. 8346 (Jan. 24, 2017) (Trump); 74 Fed. Reg. 4435 (Jan. 26, 2009) (Obama); 66 Fed. Reg. 7702 (Jan. 24, 2001) (Bush); 58 Fed. Reg. 6074) (Jan. 25, 1993) (Clinton); 46 Fed. Reg. 11,227 (Feb. 16, 1981) (Reagan). The incoming presidents have used this approach to advance their policies as opposed to being constrained by the policies of their predecessors reflected in such “midnight rules.” The D.C. Circuit, in Humane Society v. U.S. Dept. of Agric., No. 20-5291 (D.C. Cir. July 22, 2022), has limited the rules that can be withdrawn under this long-standing approach. 

Following the instructions of the new Trump administration, the Department of Agriculture withdrew an unpublished final rule concerning the treatment of show horses that had been posted on OFR’s website for public inspection. The Humane Society of the United States challenged that action as an unlawful repeal of the rule. The D.C. Circuit agreed with the Humane Society.

In an opinion by Judge Tatel, the court holds that a rule that has not yet been published in the Federal Register but that has been made available for public inspection on the website of the OFR, cannot be withdrawn or repealed unless the agency promulgating the rule first conducts notice and comment rulemaking on that action. The court finds that the Federal Register Act (FRA), Pub. L. No 74-220, 49 Stat 500, codified by Pub. L. No. 90-620, 82 Stat 1238, “distinguishes between the publication of a document and its issuance, prescription, or promulgation.”  Slip Op. at 9. In fact, the court explains, “a rule may be prescribed before publication in the Federal Register.” Id. at 10 (emphasis in original). Although most rules published in the Federal Register have an effective date subsequent to that publication, “[A] rule becomes law when duly prescribed, not when it goes into effect.” Id. at 14.  Moreover, a rule is “prescribed” or “promulgated” once it is provided for public inspection. Id. at 9-11.  As a result, the Administrative Procedure Act (APA), “requires the Agency to provide notice and an opportunity for comment before repealing [or amending] it.” Id. at 8, 21. 

The court acknowledges that this decision will impact how agencies conduct their rulemaking activities. It recognizes that agencies will need to ensure that rules made available for public inspection are free from “typographical errors and any defects in form.”  Id. at 20.  As far as the decades-long practice of an incoming presidential administration withdrawing midnight rules, the court notes, “although political transitions may provide a sound basis for a change in policy, they do not relieve agencies of their procedural obligations.” Id. at 21.

Judge Rao dissents.  In her opinion, “publication determines the adoption, finality, and effectiveness of a substantive rule.”  Id., dissent at 1.  While acknowledging that “public inspection may suffice for certain types of ‘documents’ to give them legal effect,” she concludes it is insufficient to make a substantive rule valid or enforceable. Id., dissent at 12.  She characterizes the provision of the FRA cited by the majority as “obsolete with respect to substantive rules,” id. at 5, and finds “reasonable” a regulation implementing the FRA that “explicitly allows for the prepublication withdrawal of rules.” Id., dissent at 14, 16. Citing the APA and several past judicial decisions, she concludes that it is “a fundamental principle of administration law” that a substantive rule is not final until publication in the Federal Register.  Id., dissent at 6-10.

The dissent indicates, “the majority fails to grapple with the implications of its decision.” Id., dissent at 17.  It raises questions about the decision’s implications for other rules that have previously been withdrawn after being posted for public inspection. Id, dissent at 18-19. It also states that the decision raises unanswered questions about the timing of judicial review and enforcement.  Id., dissent at 19-20.

Despite the dissent’s concern about other rules that have been withdrawn after being posted for public inspection, the Humane Society decision is unlikely to directly impact any EPA rules.  Although the Trump administration ordered the Obama EPA’s rule on “Effluent Limitations, Guidelines and Standards for the Dental Category” withdrawn after it was posted for public inspection, that rule was ultimately published.  82 Fed. Reg. 27,154 (June 14, 2017).  The Biden administration did not withdraw any actions by the Trump EPA that were available for public inspection although it withdrew several actions by other agencies that had been posted. See theFederal Register—Special Filings January 21, 2021, and January 22, 2021. Although EPA previously withdrew other rules that had been posted for public inspection by earlier administrations, the status of such rules has long been resolved and the opportunity for a timely challenge to their withdrawal or other modification has likely passed.  For the current and future administrations, EPA will undoubtedly be aware that it need only ensure that, under the Humane Society decision,  any last-minute rules are posted for public inspection to prevent an incoming administration from withdrawing and effectively revoking them.

With regard to the concern the dissent expresses about the timing for judicial review, the impact of the Humane Society decision is less clear.  Under the Clean Air Act, the deadline for seeking judicial review is explicitly tied to publication in the Federal Register. Section 307(b)(1) of that Act, 42 U.S.C. § 7607, generally requires, “Any petition for review . . . shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register.”  The time for seeking judicial review under most other environmental statutes is tied to a rule’s promulgation, however.  For example, section 509(b)(1) of the Clean Water Act, 33 U.S.C. § 1369(b)(1), specifies that judicial review must be sought within 120 days of a “determination, approval, promulgation, issuance or denial.”  Similarly, section 19(a)(1)(A) of the Toxic Substances Control Act, 15 U.S.C. § 2618,(a)(1)(A), states that judicial review must, with some exceptions, be sought “not later than 60 days after the date on which a rule is promulgated.” 

But what is promulgation?  Is a rule promulgated when it is final for purposes of requiring notice and comment rulemaking to withdraw or modify it? If so, the Humane Society decision would certainly have implications for deadlines for judicial review of EPA’s actions. The opinion, however, indicates that this is not the case. It distinguishes cases that the dissent cites concerning the meaning of promulgation as “unrelated to when notice-and-comment requirements attach.” Slip op. at 18. The decision may, however, inform the time for seeking judicial review. Notably, although the court declines to address the petitioner’s alternative argument that the rule was final when it was posted on the Department of Agriculture’s website, id. at 20, it cites an earlier decision in which it defined promulgation as “the date that the rule is signed and distributed to the press and public,” id. (citing Am. Petroleum Inst. v. Costle, 609 F.2d 20, 22-24 (D.C. Cir. 1979) (per curium)), and another decision that found “an unpublished rule was ripe for review once an agency communicated its content to the public,” Slip op. at 19 (citing Saturn Airways, Inc. v. Civil Aeronautics Bd., 476 F.2d 907, 909 (D.C. Cir. 1973 (per curium)). Therefore, although the Humane Society decision does not directly interpret deadlines for judicial review or other actions that are tied to a rule’s promulgation, it does suggest that deadlines tied to promulgation may be triggered by events earlier than Federal Register publication.

The Humane Society opinion also addresses the dissent’s (and respondent’s) concern about its implications for enforcement.  The opinion notes that the government has “repeatedly” and “successfully” brought criminal actions against individuals who had actual knowledge of an unpublished rule. Slip op. at 12. The court does not address whether an enforcement action – criminal or otherwise – could be brought against a defendant without actual notice of an unpublished rule. The legality of such an action may depend on whether the posting of the rule for public inspection (or on an agency’s website) constitutes notice of its content to members of the public. However, just as what constitutes promulgation of a rule is a separate question from whether a rule is final for purposes of requiring notice-and-comment rulemaking to withdraw or modify it, the question concerning when the public has notice of a rule’s requirements and must comply with them is separate from the question of when the rule is final. Resolution of the latter question awaits a future case. In short, the Humane Society decision determines when a rule is final for purposes of requiring notice-and-comment rulemaking to withdraw or modify it. As the majority acknowledges, id. at 21, the decision will complicate efforts by an incoming administration to change policies reflected in EPA rules from the waning days of the prior administration. The decision does not, however, as the dissent fears, determine the deadlines for petitioning for judicial review of EPA rules or for actions required under those rules. Nor does it determine when enforcement actions can be brought.