The Volokh Conspiracy
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When Does a Regulation Become Final?
The D.C. Circuit resolves a dispute over which set of visa regulations bind the public.
Today, in National Council of Agricultural Employers v. U.S. Department of Labor, the U.S. Court of Appeals for the D.C. Circuit helped bring a little more clarity to the question of when a new regulation becomes binding upon the public. Senior Circuit Judge Ginsburg wrote for court, joined by Judges Katsas and Childs.
The introduction of Judge Ginsburg's opinion effectively summarizes the nature and significance of the dispute, and the court's conclusions.
This case presents a recurring question of administrative law: At what point does a substantive rule submitted by an agency to the Office of the Federal Register (OFR) for publication become final so that it cannot be withdrawn or amended without going through the notice-and-comment requirements of the Administrative Procedure Act? The answer to this question is particularly significant during transitions between one presidential administration and the next. Those periods are often marked by a flurry of rulemaking activity. Agency leaders of the departing administration work furiously to finalize and publish new regulations, then newly appointed leaders act expeditiously to withdraw unpublished rules that might be inconsistent with the new administration's priorities, while through it all the OFR beavers away trying to keep up with the changes.
Ambiguity regarding the legal significance of processing by the OFR can result in regulatory uncertainty that persists well past the presidential transition period, as this case illustrates. In 2019 the Department of Labor (DoL) issued a notice of proposed rulemaking (NPRM) to amend its 2010 regulations regarding a visa program. During the last days of the Trump Administration in 2021, the DoL announced to the public and submitted to the OFR for publication in the Federal Register what it characterized as a final rule. While the OFR was processing the rule, however, the DoL under President Biden withdrew it. Then, in 2022, the DoL issued a new rule based upon the 2019 NPRM.
The question here is which rule marked the culmination of the rulemaking process that began in 2019, the 2021 Trump rule or the 2022 Biden rule? Or, more generally, at what point does a substantive rule submitted to the OFR for publication become final so that a new round of notice and comment is required before the agency can change or withdraw the rule?
In this case, we hold the rulemaking process culminated in the 2022 Rule. A substantive rule is not ordinarily final until the OFR makes it available for public inspection. At that juncture the rule is "duly fixed," GPA Midstream Ass'n v. Dep't of Transp., 67 F.4th 1188, 1195 (D.C. Cir. 2023), and "becomes 'valid' against the public at large," Humane Soc'y v. USDA, 41 F.4th 564, 570 (D.C. Cir. 2022) (quoting 44 U.S.C. § 1507). Although an agency can "for good cause," 5 U.S.C. § 553(d)(3), make a rule final without processing by the OFR — by putting it into effect expeditiously and giving actual notice of the official rule to members of the public — the DoL did not do so here. Instead, the DoL made the 2021 Rule contingent upon processing by the OFR and then withdrew the rule before it became final.
