ELR Citation: 52 ELR 20087
No(s). 20-5291 (D.C. Cir. Jul 22, 2022)

The D.C. Circuit held, 2-1, that an agency must provide notice and an opportunity for public comment when withdrawing a rule that has been filed for public inspection but not yet published in the Federal Register. In January 2017, USDA announced it had finalized a rule designed to protect show horses from abuse and transmitted the rule’s text to the Office of the Federal Register, where it was scheduled for publication and made available for public inspection. When the rule was withdrawn by USDA prior to being published, animal welfare advocates sued, claiming that the agency violated the APA requirement to provide notice and a comment opportunity before repealing a rule. A district court agreed with the government’s argument that the rule was not “final” under the APA because it was never published in the Federal Register, and dismissed the suit. The appellate court disagreed, holding that the rule became subject to the APA’s procedural requirements on the date it was filed for public inspection because that action amounted to a “statement prescribing law” under the APA and the Federal Register Act. It reversed the district court's order and remanded for further proceedings.