Summary
The D.C. Circuit holds that a substantive rule submitted to the Office of the Federal Register does not become final until it is made available for public inspection. Consequently, the Department of Labor could withdraw its 2021 H-2A visa rule before it was finalized, making the subsequent 2022 rule the valid culmination of the rulemaking process without requiring additional notice-and-comment procedures. The court also addresses standing for the appellant agricultural employers challenging the 2022 rule.
Topics
Practice areas
Questions Presented
- Whether a substantive rule submitted to the Office of the Federal Register becomes final for purposes of the Administrative Procedure Act before the OFR makes it available for public inspection.
- Whether the Department of Labor's 2021 H-2A rule became final when the agency announced it and posted an unofficial version on its website, despite the rule remaining in OFR processing and conditioning its effective date on Federal Register publication.
- Whether the NCAE had standing to challenge the 2022 rule based on a procedural injury resulting from the alleged denial of notice and comment.
- Whether the 2022 rule was invalid because the Department of Labor did not conduct a new notice-and-comment proceeding.
Holdings
- A substantive rule is ordinarily not final until the Office of the Federal Register makes it available for public inspection. Public inspection presumptively marks the consummation of the rulemaking process and the point at which the rule is authoritatively established and becomes binding against the public at large.
- The 2021 rule did not become final when the Department announced it and posted it on its website because it remained subject to OFR processing, contained an effective-date placeholder tied to Federal Register publication, and expressly stated that only the Federal Register version was official.
- The NCAE had standing to challenge at least the surety-bond requirements of the 2022 rule because its members suffered concrete financial injuries, the interests asserted were germane to the association's purpose, and individual member participation was unnecessary.
- The 2022 rule was not invalid for lack of a new notice-and-comment period because the 2021 rule had never become final; the 2021 rule therefore did not need to be repealed or amended through a new notice-and-comment process.
Key quotations
“A substantive rule is not ordinarily final until the OFR makes it available for public inspection.” (3)
“We therefore hold that public inspection presumptively marks the consummation of the rulemaking process.” (20)
“Because the 2021 Rule was a substantive rule that was not filed on the public inspection docket, it was not final for purposes of the notice-and-comment requirements of the APA.” (26)
Factual background
In 2019, the Department of Labor issued a notice of proposed rulemaking concerning regulations implementing the H-2A agricultural worker visa program and received more than 83,000 comments. In January 2021, the Department submitted a purported final rule to the Office of the Federal Register and posted an unofficial version on its website, but the rule remained in confidential OFR processing and contained a disclaimer stating that only the Federal Register version would be official. The Department withdrew the rule after the presidential transition and later issued a 2022 rule based on the 2019 proposal. The 2022 rule imposed regulatory and financial requirements on agricultural employers, including increased surety-bond requirements.
Procedural history
The NCAE challenged the withdrawal of the 2021 rule and the validity of the 2022 rule, arguing that the 2021 rule had already been finalized and could not be withdrawn or replaced without additional notice and comment. The district court held that the NCAE lacked standing to challenge withdrawal of the 2021 rule, found standing to challenge at least portions of the 2022 rule, denied preliminary injunctive relief, and later granted the Department of Labor summary judgment. The D.C. Circuit affirmed as to the validity of the 2022 rule.