On July 22, 2022, the United States Court of Appeals for the District of Columbia Circuit published its decision in Humane Society of the United States v. United States Department of Agriculture. The decision addresses a new rule expanding existing protections against “soring” show horses: an abusive practice of inflicting pain on a horse’s legs to alter its natural gait. The new rule would change the way the rule is enforced, moving from a system where horse show organizers employ inspectors to one using only USDA-employed inspectors. But the case centers around a procedural question: Does a rule become effective once posted for public inspection on the Federal Register’s website even though it is withdrawn by the executive before publication in the Federal Register itself? Over a vigorous dissent by Judge Rao, Judges Tatel and Millett held that yes, it does.
While the new rule was available for public inspection, but before it was published in the Federal Register, President Trump ordered all executive agencies to immediately withdraw all regulations sent to the Office of the Federal Register but not yet published. This is what every incoming presidential administration has done since at least 1993. As Judge Rao points out in dissent, this has prevented those rules from taking effect. Only publication in the Federal Register makes a rule effective.
The Humane Society v. USDA decision raises an immediate question: What other unpublished, withdrawn rules have been revivified by this holding? Mark Febrizio turned up a few from 2017 and 2021, but there may be examples from as far back as 1993. One example involves a Biden administration proposed rule on clean energy for new federal buildings and for major renovations of existing federal buildings. One small problem: An earlier version of the regulation—referenced explicitly in the ongoing regulatory effort—was withdrawn by President Trump while it was available for public inspection. The current administration acts as though that prior version is not effective. Yet, following this recent decision, it may in fact be the law. You cannot see it, though: Withdrawn rules just appear where they were once posted for public inspection as a single, blank page stating that the rule has been withdrawn. Still, like a rake in a pile of leaves, some federal agency somewhere may have smacked itself in the face by not following it.
The ruling also opens up what once were thought to be well-settled questions of administrative law. Many deadlines to file legal challenges against agency actions run from the date of publication of the rule, as nearly every circuit has held (and as Judge Rao points out in her dissent). Do those deadlines now run from the date of posting for public inspection online rather than the date of publication in the Federal Register? Furthermore, many agencies post public inspection copies of their final rules on their own websites before sending them to the Federal Register. If an agency does so post-Humane Society, does that have the effect of making the rule irrevocable without further notice-and-comment? If not, what statutory or other basis differentiates public inspection on an agency website from public inspection on the Federal Register’s website prior to publication? All these questions and more will await explication unless the Supreme Court in a later case casts aside this latest D.C. Circuit administrative law innovation, as it has done before.
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