[00:00:00] Speaker 01:
Case number 20-5291, Humane Society of the United States et al.

[00:00:05] Speaker 01:
at Balance versus United States Department of Agriculture et al.

[00:00:09] Speaker 01:
Ms.

[00:00:09] Speaker 01:
Flynn for the at Balance, Mr. Byron for the at Belize.

[00:00:18] Speaker 07:
Good morning.

[00:00:24] Speaker 04:
Ms.

[00:00:24] Speaker 04:
Flynn, you're muted, I believe.

[00:00:29] Speaker 02:
Thank you.

[00:00:30] Speaker 02:
Thank you, Your Honor.

[00:00:31] Speaker 02:
Good morning, Your Honor, and may it please the court, Caroline Flynn for the Humane Society and its members.

[00:00:37] Speaker 02:
Under the Horse Protection Act, a USDA rule has issued and becomes law once the agency has formally approved that rule and releases it to the public.

[00:00:46] Speaker 02:
Here, that point was no later than January 19th, 2017.

[00:00:50] Speaker 02:
by which time the agency had published the rule last time.

[00:00:55] Speaker 00:
You're welcome.

[00:00:55] Speaker 00:
Assuming you have a JA or a local law firm.

[00:01:00] Speaker 05:
Uh-oh.

[00:01:01] Speaker 05:
And we're hearing sounds from other people?

[00:01:03] Speaker 05:
I've just met with them, Judge.

[00:01:07] Speaker 02:
Thank you.

[00:01:10] Speaker 02:
By which time the rule had been published on the department's website as a final rule and filed for public inspection.

[00:01:15] Speaker 05:
The government argues that a rule, your theory, just to just to be clear, your theory, the case isn't limited to something special about the Horse Protection Act.

[00:01:23] Speaker 05:
You're just making a broader administrative law argument, or is yours confined to the Horse Protection Act?

[00:01:28] Speaker 02:
Our argument is confined to the Horse Protection Act and that that's the provision we're ultimately interpreting here.

[00:01:33] Speaker 02:
The agency's authority to issue rules to carry out the Horse Protection Act.

[00:01:38] Speaker 02:
That's in 15 USC 1828.

[00:01:41] Speaker 02:
And so that's why we're focusing on the ordinary meaning of the word issue, but we believe that you know background principles administrative law about finality indicate that that point has to be after the agencies reach the culmination of decision making process.

[00:01:55] Speaker 05:
I'm not quite sure I understand that, because the whole point here is you're invoking the an API principle that you know the way you promulgate a rule is the way you have to withdraw a rule.

[00:02:06] Speaker 05:
through noticing comment in and noticing comment out is your theory.

[00:02:11] Speaker 05:
And that doesn't have anything to do with the word issue, does it?

[00:02:16] Speaker 02:
Right.

[00:02:16] Speaker 02:
Well, when the agency issues rules underneath its HPA authority, it has to comply with the APA.

[00:02:23] Speaker 02:
And we're also arguing that we know that the government's line of publication, the Federal Register publication, can't be right because of the APA provision saying that unpublished rules can be enforced in some circumstances.

[00:02:35] Speaker 02:
as well as the Federal Register Act provision saying the same thing and also saying that public inspection is when rules are valid and also when they get constructive notice to the public.

[00:02:46] Speaker 04:
As to that latter argument that something can be enforced against a person before publication, are you aware of any cases or any instances in which that has been applied to rules of general applicability?

[00:03:04] Speaker 02:
Yes, private rights.

[00:03:07] Speaker 02:
Yes, your honor.

[00:03:08] Speaker 02:
We're aware of instances in which, you know, substantive legislative rules were enforced against members of the public.

[00:03:15] Speaker 02:
You know, often this this issue comes up because the agency didn't think it was a substantive rule that needed to go through notice and comment rulemaking or didn't think it was something that needed to be published.

[00:03:25] Speaker 02:
And the court says, well, this entity had actual notice anyway.

[00:03:29] Speaker 02:
We also have a series of cases.

[00:03:31] Speaker 02:
What cases are you thinking about for that position?

[00:03:34] Speaker 02:
Sure, so the Tierney versus National Transportation Safety Boards cited in our brief in the Fifth Circuit case.

[00:03:46] Speaker 04:
We have in the Arlington oil mills versus Knievel case that we cite from the Fifth Circuit where... Tierney was about an individual enforcement action and an adjudication of whether a pilot violated a regulation.

[00:04:02] Speaker 02:
Right, but it was, well, maybe I might misunderstand your honor's question.

[00:04:06] Speaker 02:
I think it was enforceable against all pilots and brought to bear against this particular.

[00:04:11] Speaker 04:
But the issue there was whether that adjudication, whether the results of that adjudication had to be published in the Federal Register.

[00:04:19] Speaker 04:
The rule had been published in the Federal Register.

[00:04:22] Speaker 04:
There was a rule on the books.

[00:04:23] Speaker 04:
So that case doesn't talk about, I mean, that case doesn't, I think, support what you're suggesting it supports.

[00:04:32] Speaker 02:
Well, I could point you to, well, for one, the Arlington oil mills versus Knievel case where with the price differentials where the agency issued it versus via a price release and the government for the this court found that that had been a rule that could be enforced against the public and couldn't be revoked after notice and comment.

[00:04:53] Speaker 02:
There's some other cases that are not cited in our briefs, but there's one called a saving of New York Department of Social Services versus Shalala.

[00:05:00] Speaker 02:
That's a 21 F third, 485 from the second circuit.

[00:05:05] Speaker 02:
That was a price reimbursement scheme applicable to state, I believe Medicare systems where the court found that was a substantive rule that was not published that could be enforced.

[00:05:20] Speaker 02:
But I mean, I think,

[00:05:23] Speaker 02:
You know, the greater principle is that if the government is arguing that the line here is federal register publication.

[00:05:29] Speaker 02:
The fact that some rules can be that materials can be enforced against at least some members of the public shows that the rule must have become law.

[00:05:42] Speaker 02:
Regardless, I mean, I don't understand them to be arguing that that caveat only applies to a subset of rules or maybe non-subsidive rules or

[00:05:51] Speaker 02:
rules against a sufficiently broad segment of the public.

[00:05:56] Speaker 04:
I think the way the statute, the APA and the FRA read though, those actual notice cases are about individual, are about a particular, I think a fair reading of them is that there are probably only about certain types of rules that are not rules of general applicability, not legislative rules of general applicability that apply to private rights.

[00:06:22] Speaker 04:
And even if that's not the case, is there any evidence in the APA or the FRA that an agency's discretion to withdraw a rule before publication?

[00:06:33] Speaker 04:
I mean, is there anything that constrains their ability to do that?

[00:06:40] Speaker 02:
Yes, Your Honor.

[00:06:41] Speaker 02:
We're arguing that at the point at which the agency reaches the culmination decision-making process, announces that its work is done, the rule has issued, and it can't be.

[00:06:52] Speaker 02:
the agency is not free to change course at that point.

[00:06:56] Speaker 04:
How would that rule be administered in practice?

[00:07:00] Speaker 04:
How would a member of the public know what the date was?

[00:07:03] Speaker 04:
I mean, you're saying it could be posting on the website.

[00:07:06] Speaker 04:
It could be when it becomes available for public inspection.

[00:07:08] Speaker 04:
How would we know, for instance, when the date would be fixed for the purposes of judicial review, where a statute says you have 60 days to petition for judicial review?

[00:07:20] Speaker 02:
Right, so I want to clarify that argument is just about the point of no return for the agency at which point the agency can't turn back and say actually our rule wasn't final and start over.

[00:07:32] Speaker 02:
So we are not putting forward a rule that would govern.

[00:07:36] Speaker 02:
Just, you know, any judicial review statute or writ large.

[00:07:39] Speaker 02:
But the public inspection line that date and hour is required to be noted on the document itself under the Federal Register acts that's in 1503 or 44 USC 1503.

[00:07:51] Speaker 02:
Um, and as for the point of, um, public release more generally posting on a website, you know, in the, in the American petroleum versus causal case, this court said that the point of which the judicial or the administrative record closes is the point of which the rule is released.

[00:08:05] Speaker 02:
So, um, you know, the court must've found that to be a sufficiently administrable line for that purpose.

[00:08:10] Speaker 02:
Um, and I'd also say that this, this issue, you know, predominantly will come up during presidential transitions.

[00:08:16] Speaker 02:
And so agencies will have every incentive to carefully mark

[00:08:20] Speaker 02:
If this court decides that the line should be public release as opposed to public inspection, and to be clear, I don't think you need to resolve that issue in this particular case, given that we have both.

[00:08:29] Speaker 02:
But if it went with public release, agencies would have an incentive to make sure that date and time was known for purposes of this rule that at that point, further notice and comment would be needed to turn back on the rule.

[00:08:45] Speaker 06:
Ms.

[00:08:45] Speaker 06:
Flynn, let me ask you a different kind of question.

[00:08:51] Speaker 06:
As I understand your argument, your position is that these statutes, FOIA and the Federal Register Act, that they're notice statutes, right?

[00:09:00] Speaker 06:
That they tell us how agencies provide notice of a regulation they've already issued.

[00:09:10] Speaker 06:
So with respect to the latter question, that is how an agency goes about issuing a regulation, what's

[00:09:20] Speaker 06:
What do we look to answer that question?

[00:09:24] Speaker 06:
You cite the dictionary, but that doesn't do it for me.

[00:09:28] Speaker 06:
So I guess my question is, if you're right about your notice argument, then how do we know when an agency has actually issued a regulation?

[00:09:40] Speaker 06:
And what's the standard for that?

[00:09:42] Speaker 06:
How do we decide that?

[00:09:44] Speaker 06:
What case law do we look to for that?

[00:09:48] Speaker 02:
Um, so, uh, our rule turns on, um, you know, the ordinary issue, right?

[00:09:55] Speaker 02:
But also you say it is a dictionary, the dictionary, but we're also, you know, resorting to background principles of finality, which is when agency reaches the culmination of decision making process.

[00:10:07] Speaker 02:
But your honor asked for case law.

[00:10:08] Speaker 02:
I would point you to the public citizen versus magnetic case from the ninth circuit.

[00:10:12] Speaker 02:
We cited in our reply brief.

[00:10:14] Speaker 02:
In that case, the Ninth Circuit was looking at the word issue and said under, you know, the ordinary meaning of the term.

[00:10:20] Speaker 06:
The Ninth Circuit relied on the dictionary, right?

[00:10:24] Speaker 02:
It did rely on the dictionary.

[00:10:25] Speaker 06:
I'm looking for something, there's nothing in the statute that you can point to that gives us any standard, is there?

[00:10:33] Speaker 02:
Aside from the, the meaning of the word no, but I guess I would to defend our, our line, you know, in a more common sense way.

[00:10:41] Speaker 02:
I think when you know the purpose of asking this question is when the agency can no longer turn back, you know, it's not about whether it's generally effective or forcible against the general public and I think when the agency.

[00:10:53] Speaker 02:
reaches the end of its process, says, this is our final rule, announces to the world that they are done.

[00:11:00] Speaker 02:
They've made the decision.

[00:11:01] Speaker 02:
This is how they're going to defend the decision with this preamble.

[00:11:05] Speaker 02:
That should be the point of pencils down for the agency.

[00:11:09] Speaker 02:
There shouldn't be a twilight period of, well, maybe they can rethink it, even though after that point, all that needs to happen is OFR publishes it, which is a purely ministerial act.

[00:11:18] Speaker 02:
It's not some kind of substantive review of the rule itself.

[00:11:22] Speaker 06:
So you and the government seem to agree that at least for the past, what, three decades or so, incoming administrations have withdrawn unpublished rules from the Office of Federal Register.

[00:11:41] Speaker 06:
And no one's objected to that.

[00:11:42] Speaker 06:
There hasn't been any litigation about that.

[00:11:45] Speaker 06:
So there seems to be a practice, having developed, that what happened here is OK, that what happened here seems consistent with

[00:11:53] Speaker 06:
the practice of incoming administration is, I guess, back to the Clinton administration.

[00:11:59] Speaker 02:
It does date back to the Clinton administration, Your Honor.

[00:12:02] Speaker 02:
I would say that just because this practice has been allowed to continue and that presidents have chosen to exercise this authority doesn't mean that this Court should bless it and allow it to continue in perpetuity.

[00:12:14] Speaker 02:
I really think that this practice

[00:12:17] Speaker 02:
does represent a very arbitrary form of agency whiplash.

[00:12:21] Speaker 02:
Like we are here defending a rule that was the result of many, many years of deliberation.

[00:12:26] Speaker 02:
It started all the way back in 2010.

[00:12:29] Speaker 02:
There was an extended notice and comment period.

[00:12:30] Speaker 02:
They extended the comment period.

[00:12:33] Speaker 02:
They thoroughly responded to comments in the final rule that they sent out into the world as a final rule.

[00:12:39] Speaker 02:
And then that was undone after five minutes thought on January 20th with no explanation.

[00:12:45] Speaker 02:
No response to any of the agency's findings where it is found that this current regime, as it's currently being carried out now, is not effective to prevent horse abuse, is not effectively carrying out the law, is rife with conflicts of interest.

[00:13:01] Speaker 06:
I just have one final question here for you.

[00:13:08] Speaker 06:
Suppose you win on your APA claim.

[00:13:15] Speaker 06:
Here, the Agriculture Department could not withdraw the regulation without notice or comment.

[00:13:24] Speaker 06:
Do we need to address your other claim under the Office of Federal Register Scheduling Standards?

[00:13:30] Speaker 06:
Does that even need to be addressed?

[00:13:32] Speaker 02:
No, Your Honor.

[00:13:33] Speaker 02:
If this Court were to rule in our favor on the first claim and vacate the withdrawal, there would be no basis for you to turn to the second claim.

[00:13:44] Speaker 02:
We would have all the relief we need.

[00:13:46] Speaker 06:
So this is here on a motion to dismiss, right?

[00:13:48] Speaker 06:
I suppose the government's answer to your question at least about the APA thing as well.

[00:13:54] Speaker 06:
There's still summary judgment.

[00:13:56] Speaker 06:
Can you imagine anything the government could offer on summary judgment that would change the outcome of the APA case?

[00:14:04] Speaker 02:
No, Your Honor.

[00:14:04] Speaker 02:
I don't think discovery is necessary on our first claim.

[00:14:07] Speaker 02:
And I think that the legal issues are straightforward.

[00:14:11] Speaker 02:
I think they're fully briefed at this point.

[00:14:14] Speaker 02:
Um, on, on the first claim, I wouldn't see the need for proceedings.

[00:14:21] Speaker 05:
Um, I had a couple of questions if you're done.

[00:14:27] Speaker 05:
Um, so again, you, you talked about the word issue in the statute, but when you, is there any daylight in your mind between the word issue in that statute and finality?

[00:14:42] Speaker 05:
The word finality just as a matter of as in a final yes as in final agency action finality.

[00:14:50] Speaker 02:
Right, so we think the first prong of the benefit spirit test is helpful here.

[00:14:55] Speaker 02:
The second one, whether or not the action has legal effect is sort of the question we're trying to answer in some sense.

[00:15:01] Speaker 02:
So I'm not sure that that is as helpful, but I think the first prong where we're asking about the culmination of agency.

[00:15:07] Speaker 05:
Well, let me try again this way.

[00:15:09] Speaker 05:
Sure.

[00:15:10] Speaker 05:
Under your definition of issue, could an agency issue a rule or regulation that still would not be final?

[00:15:21] Speaker 05:
For both problems no so your issue and your issue your your understanding of issue.

[00:15:28] Speaker 05:
equates with established understandings of finality.

[00:15:33] Speaker 02:
Yes, with the caveat that sometimes regimes have special judicial review statutes that use certain words or tie it to certain times.

[00:15:41] Speaker 02:
And so I'm not saying that could have impact when somebody asks for judicial review or brings a petition for review or something like that.

[00:15:49] Speaker 05:
Yes, yes.

[00:15:50] Speaker 05:
I don't mean it in that sense.

[00:15:52] Speaker 05:
The agency's done.

[00:15:53] Speaker 05:
So I understand your first prong.

[00:15:54] Speaker 05:
But the point is that it's also a rule that will have determined rights in some way or another, presumably.

[00:16:02] Speaker 02:
Yes, it is a legal plan.

[00:16:04] Speaker 05:
So for those purposes of the program, I'm not talking about when you can bring a law student.

[00:16:08] Speaker 05:
I'm really just talking about it's fine.

[00:16:10] Speaker 05:
That would be final agency action in your view.

[00:16:13] Speaker 05:
Now my other question is, is there any daylight in your mind between a rule being final in that way, in that legal way, and the notice and comment process being completed?

[00:16:32] Speaker 02:
Well, we're not quibbling.

[00:16:33] Speaker 05:
We had to go through notice and comments.

[00:16:35] Speaker 05:
I'm not talking about things that don't have to.

[00:16:36] Speaker 02:
Right.

[00:16:37] Speaker 02:
So we're not quibbling with the, you know, the idea that agencies have discretion not to complete a rulemaking.

[00:16:44] Speaker 02:
So they could have taken comments and decided not to move forward at that point.

[00:16:48] Speaker 02:
But once this... Well, that wouldn't have been a final rule either.

[00:16:51] Speaker 02:
Exactly.

[00:16:52] Speaker 05:
That's what I'm asking is, is there something, can you envision a situation

[00:16:56] Speaker 05:
in which a rule has to go through notice and comment rulemaking or is going through notice and comment making would become final before the notice and comment rulemaking process completes?

[00:17:09] Speaker 05:
No, Your Honor.

[00:17:12] Speaker 05:
Okay, so what is the last step?

[00:17:14] Speaker 05:
I think I understand that because your argument has to be that if they haven't finished notice and comment rulemaking, even though it's somehow final,

[00:17:22] Speaker 05:
you wouldn't be able to say that they have to withdraw it through notice and comment rulemaking.

[00:17:26] Speaker 05:
What is the last step that an agency takes that completes the notice and comment rulemaking process?

[00:17:36] Speaker 02:
In our view, it's the release of the approved

[00:17:41] Speaker 02:
final rule to the public.

[00:17:44] Speaker 02:
But I would say that even if your honor disagrees with me about that, and thinks that you have to be.

[00:17:49] Speaker 05:
I find this a difficult area.

[00:17:52] Speaker 05:
I'm not asking it as really I'm trying to learn from you.

[00:17:56] Speaker 05:
So you don't have to go to where I disagree, but just to explain your answer a little bit more.

[00:18:00] Speaker 05:
So do you mean by the agency itself releasing it, or do you read the APA and or the Federal Register Act is making

[00:18:11] Speaker 05:
public inspection or publication in the federal register, either public inspection in the office of federal register or publication in the federal register, the final step, maybe a final procedural step in notice and comment rulemaking.

[00:18:27] Speaker 02:
Our argument is the final step is releasing the approved final poll, distributing it to the public.

[00:18:35] Speaker 05:
The agency itself, not the Office of Federal Register.

[00:18:38] Speaker 02:
The agency itself.

[00:18:40] Speaker 02:
That said, I do, if your honor would indulge me, do want to emphasize that if you believe that public inspection were the better line, and you know that is the line that aligns with what this court said in the NAM versus NLRB case about

[00:18:54] Speaker 02:
The moment at which you test the validity of an agency's quorum is also the line that's more specifically set out in 1507.

[00:19:05] Speaker 02:
You know, we went under that line as well, and there are reasons that that rule is also has, you know, things to commend it.

[00:19:12] Speaker 02:
I don't think that you have to decide this particular line for purposes of this case.

[00:19:16] Speaker 05:
I'm just trying to understand how it would at least be helpful to me to have the concrete sense of which one really is the better of those two.

[00:19:30] Speaker 05:
So your first argument is the better of those two in your view is once it's released to the public, call it a final rule.

[00:19:41] Speaker 05:
whether by the agency or the Office of Federal Register, that's the magic moment.

[00:19:47] Speaker 05:
Notice and comment ends and finality attaches.

[00:19:51] Speaker 02:
Yes.

[00:19:52] Speaker 02:
When the agency has announced to the world that its work is done, this is its decision.

[00:19:57] Speaker 02:
This is how it's defending its decision.

[00:19:59] Speaker 02:
And assuming that before that point, the prior official approval had been received from the relevant agency officials or delegates, that is the point at which

[00:20:10] Speaker 02:
we think the agency is no longer free to turn.

[00:20:12] Speaker 05:
What do you mean by this is how the agency is defending itself?

[00:20:16] Speaker 02:
Oh, I'm sorry.

[00:20:16] Speaker 02:
I just mean in the sense that, you know, the preamble is written to this is what the agency is relying on.

[00:20:21] Speaker 02:
This is the kind of arguments they're making, things like that, assuming we're talking about a legislative rule.

[00:20:27] Speaker 02:
And we think that line also tracks, you know, it more closely tracks with the fact that the 552A1 says that

[00:20:34] Speaker 02:
rules can be enforced in certain circumstances with when there's actual notice.

[00:20:38] Speaker 02:
That's also what the FRA says in 1507.

[00:20:42] Speaker 02:
And so since those statutes do talk about factual notice, that's why we think that, you know, that moment can precede public inspections, at least in today's day age when, you know, we have website publication.

[00:20:55] Speaker 02:
But again, I would say that if the line is public inspection, we went under that standard as well.

[00:21:02] Speaker 05:
And then, but if it's your first line, your first line that is assuming any agencies don't always do this but it's maybe more commonly now in the modern day but not when these statutes are written.

[00:21:17] Speaker 05:
chooses, does itself release to the public, post to the public.

[00:21:23] Speaker 05:
This rule announces it as final, includes all the bells and whistles of final role, notice and comment, rulemaking, responding to comments and everything.

[00:21:36] Speaker 05:
If, could that rule be adopted consistent with chemical?

[00:21:40] Speaker 02:
Yes, your honor.

[00:21:43] Speaker 02:
So if I could,

[00:21:45] Speaker 02:
like to make a few points about Kennecott.

[00:21:46] Speaker 02:
So in Kennecott, of course, the rule had not been posted for public inspection.

[00:21:51] Speaker 02:
There's no indication the agency had publicized it at all.

[00:21:54] Speaker 02:
And when this court was approving of OFR's practice of letting agencies withdraw before public inspection, it noted that caveat on its analysis several times.

[00:22:06] Speaker 02:
On those pages of 1205 and 1206, I think it said,

[00:22:10] Speaker 02:
You know agencies can withdraw during the confidential processing period before public inspection before it's made public, something like six times.

[00:22:18] Speaker 02:
The the government focuses more on a different part of the opinion about a different claim in that claim the kind of court rejects the proposition that whenever agencies internally approve a draft version of the final regs as the language they use.

[00:22:35] Speaker 02:
That that has to go through notice and comment, but of course we're not arguing that internal approval without release.

[00:22:41] Speaker 02:
is our line.

[00:22:43] Speaker 02:
And then if I could, I would like to point the court to one other aspect of the Kennecott decision.

[00:22:48] Speaker 02:
And this is a portion the parties haven't focused quite as much on, but it's when they are looking at a statute of limitations provision for CERCLA and they're looking at how the agency interpreted the word promulgation in the context of that CERCLA provision.

[00:23:04] Speaker 02:
And the court says that the word promulgate is ambiguous at Chevron step one.

[00:23:10] Speaker 02:
And this was after the national grain decision sort of setting forth that statutory interpretation default rule for the word promulgate.

[00:23:17] Speaker 02:
And the court says it's ambiguous because it could either mean that a registered publication or it could mean the point of public inspection.

[00:23:25] Speaker 02:
We're not sure which one it is, but we think it's ambiguous at step one.

[00:23:29] Speaker 02:
So that would be, you know, if the court had decided earlier in the opinion that

[00:23:33] Speaker 02:
federal register publication is as a matter of law, the point at which a rule is promulgated, that later discussion would be odd.

[00:23:43] Speaker 02:
And we also just think that the ruling on the APA claim has to be read in the context of what came before when the court was very clear it was only talking about circumstances when a rule is withdrawn before the point of public release.

[00:23:56] Speaker 04:
Ms.

[00:23:56] Speaker 04:
Flynn, what about the language in Calicot that

[00:23:59] Speaker 04:
I mean, I think this seems to me at least fairly clear.

[00:24:02] Speaker 04:
I mean, it says in discarding the 1993 document, which was the rule that had been sent to the register, the agency was in no sense formulating a rule.

[00:24:12] Speaker 04:
Instead, it rejected a document that had not yet been published, nor did the agency amend or repeal a rule because the 1993 document never became a rule subject to amendment or repeal.

[00:24:25] Speaker 04:
So our court, I think very specifically called a rule that had been sent to the federal register, not a final rule, called it a document.

[00:24:34] Speaker 04:
And because it had not been published, it did not require notice and comment rulemaking to be withdrawn.

[00:24:43] Speaker 04:
I'm not sure how the rule that you're proposing that would turn on public inspection or possibly some point before public inspection

[00:24:52] Speaker 04:
squares with that statement and other statements in Kennecott.

[00:24:57] Speaker 02:
Right.

[00:24:58] Speaker 02:
So, you know, I understand that those statements in the opinion are phrased more broadly, but I do think that they have to be read in the context of the court being very, very clear that it was talking about a point where the document had not been released to the public.

[00:25:11] Speaker 02:
It was still being confidentially processed.

[00:25:13] Speaker 04:
And that was because the Office of Federal, the regulations that issue there, you know, had a different form than they do now.

[00:25:22] Speaker 04:
So the FRA doesn't say anything about when an agency can withdraw a document from the Office of Federal Register, does it?

[00:25:32] Speaker 02:
No, it doesn't, Your Honor.

[00:25:34] Speaker 04:
And the reasoning in Kennecott suggested, it explained precisely that, that the statute was silent on that question and that OFR's regulations were then reasonable in how they filled in those gaps.

[00:25:48] Speaker 04:
So here we now have regulations from OFR suggesting that an agency can withdraw rules before publication.

[00:25:55] Speaker 04:
Are you suggesting that that regulation is unreasonable?

[00:26:01] Speaker 02:
I think the outshot of our position is that the regulation allowing a withdrawal after public inspection is unreasonable, but that hasn't been called directly into question in this case.

[00:26:11] Speaker 02:
But I also, when we're focusing on the portion of Kennecott looking at the APA claim, I would just say again that the court

[00:26:18] Speaker 02:
earlier makes clear it's rejecting an argument where a document, or sorry, when an agency internally approves a draft version of the final regulations, that that needs to go through notice and comment.

[00:26:29] Speaker 02:
And that is, again, not our argument.

[00:26:31] Speaker 02:
Our argument is after the point of announcing it to the world and saying this is our final rule, that that is different.

[00:26:37] Speaker 04:
The other... What about the cases and OFR regulations in practice suggesting that at the point of public inspection,

[00:26:45] Speaker 04:
You know, one of the purposes of public inspection is so that members of the public or other agencies can identify any errors in the rule.

[00:26:55] Speaker 04:
You know, and it's not uncommon for something after public inspection to be corrected or withdrawn to make corrections.

[00:27:05] Speaker 04:
What about the cases and the regulations that recognize that as the purpose of public inspection?

[00:27:11] Speaker 04:
I mean if that is one of the purposes of public inspection and suggest that the agency still has the ability to make changes at that point.

[00:27:20] Speaker 02:
I apologize your honor I'm not familiar with the cases saying that after public inspection that the public can.

[00:27:27] Speaker 02:
You know, identify an error after public inspection, the agency can change the rule to respond to it.

[00:27:32] Speaker 02:
I'm certainly in the in the OFR regulations and handbook in the handbook.

[00:27:38] Speaker 02:
Sure.

[00:27:39] Speaker 02:
So I'm assuming that.

[00:27:41] Speaker 02:
Yeah.

[00:27:41] Speaker 02:
So right now.

[00:27:43] Speaker 02:
Yeah.

[00:27:45] Speaker 02:
Right.

[00:27:45] Speaker 02:
So I guess I would just still say that the point of pencils down should really be, you know,

[00:27:52] Speaker 02:
earlier when the agency has put forth its final rule, there shouldn't be a twilight zone of being able to respond to further public response.

[00:27:59] Speaker 02:
If the public notice is an error after a Federal Register publication, I think the government would still say, well, at that point, we can't do anything about it unless it's a truly completely obvious typo that can be fixed with another Federal Register notice.

[00:28:18] Speaker 02:
So there's always kind of a point at which

[00:28:20] Speaker 02:
The agency can't turn back there can't be more public involvement and I also would just be clear that the OFR processing period.

[00:28:28] Speaker 02:
In all this period is not for substantive review, this is not like OMB.

[00:28:33] Speaker 02:
They're not trying to help you know strengthen the reasoning or the pros or anything like that it's really just to check for formatting things make sure it's in the style guide for GPO.

[00:28:43] Speaker 04:
And all the more reason though, then it seems strange to me to constrain the agency's discretion, right?

[00:28:49] Speaker 04:
So the agency works on its rule.

[00:28:51] Speaker 04:
It's approved.

[00:28:53] Speaker 04:
It's kind of finalized internally.

[00:28:55] Speaker 04:
If they, for instance, had an internal printing press that, you know, printed their rules, they presumably could change the rule right until the moment it was published.

[00:29:06] Speaker 04:
So I guess I'm not sure why that

[00:29:08] Speaker 04:
that ability to modify something before publication changes simply because they had sent it to the office of the federal register.

[00:29:16] Speaker 02:
I would agree with you that the agency could change it before the point at which it made that rule public.

[00:29:25] Speaker 04:
Well, so oftentimes the agency doesn't control, I mean, the agency doesn't control when it becomes available for public inspection.

[00:29:31] Speaker 04:
I mean, that's up to the OFR's internal processing, right?

[00:29:35] Speaker 04:
The OFR, once they receive the rule, they have to figure out

[00:29:38] Speaker 04:
you know, they have their confidential processing period, and then they make things available for public inspection when it's ready.

[00:29:45] Speaker 04:
The agency often doesn't really have any control over that time.

[00:29:49] Speaker 02:
Oh, far has discretion to put a rule on a deferred schedule under if certain criteria are met.

[00:29:54] Speaker 02:
Those are the regulations that we focus on for our second claim.

[00:29:58] Speaker 02:
But the agency, you know that the rule is supposed to be that supposed to be posted for public inspection two days after it's officially submitted by the agency.

[00:30:08] Speaker 02:
So it's not, you know, there's not total discretion to, you know, have it languished at the Federal Register.

[00:30:16] Speaker 02:
But I also just say, I mean, you know, I recognize Your Honor's point that this might in some way constrain agency discretion during that period where between, you know, public release or public inspection of the document and final Federal Register publication, I think it only matters when it really, when there's a presidential transition.

[00:30:34] Speaker 02:
Otherwise, that delta is not gonna be great, but.

[00:30:36] Speaker 04:
I've experienced that that is not the case, that rules are frequently withdrawn from OFR by agencies, not in presidential transitions.

[00:30:46] Speaker 04:
It is not uncommon for that to occur because the agency recognizes there's a mistake or there's something else that has to be done.

[00:30:53] Speaker 04:
So it becomes very salient to presidential transitions, because obviously it's a shift in policymaking, but that is not the only context in which it occurs.

[00:31:02] Speaker 02:
Right.

[00:31:02] Speaker 02:
But we are arguing that once the agency announces this is its rule, that is what it has said it has done.

[00:31:13] Speaker 02:
It has said this is a decision we've made.

[00:31:14] Speaker 02:
At that point, they need to stand by that decision and cannot reverse course without explaining why they are or taking comment again about why that's improper.

[00:31:22] Speaker 02:
And I

[00:31:29] Speaker 02:
I'd also just I think go back to my earlier answer that if the agency notices a mistake after Federal Register publication, they're in the same boat.

[00:31:35] Speaker 02:
So this is really just changing that point.

[00:31:37] Speaker 02:
You know, maybe this means that agencies have to more carefully review their rules before they make them public to make sure to catch mistakes at that point.

[00:31:46] Speaker 02:
But I'm not sure that this is going to meaningfully, you know, imperil

[00:31:51] Speaker 02:
the quality of agency rules.

[00:31:55] Speaker 05:
Can I ask you a question about this public inspection at OFR?

[00:32:03] Speaker 05:
First of all, do the regulations provide a mechanism for comments from the public to be reported to OFR or the agency?

[00:32:12] Speaker 05:
Because it's a very tight time window between public inspection and publication.

[00:32:16] Speaker ?:
Right.

[00:32:17] Speaker 05:
Do the regulations or handbook provide a procedure for comments to be received and processed?

[00:32:23] Speaker 02:
I'm not aware of any regulation.

[00:32:24] Speaker 02:
And as your honor said, the timeframe is supposed to be very tight.

[00:32:28] Speaker 05:
And the handbook?

[00:32:31] Speaker 02:
I'm not sure of anything in the handbook.

[00:32:32] Speaker 02:
I'm less familiar about parts of that, but yeah.

[00:32:36] Speaker 05:
Would comments go to OFR or would they go to the agency?

[00:32:40] Speaker 02:
Well, sorry, I should say I have no reason to think that there are

[00:32:43] Speaker 02:
there is any mechanism for comments.

[00:32:45] Speaker 02:
I'm not as familiar with every part of the handbook, so I just didn't want to completely rule out the possibility, but I have no reason to think there is such a mechanism, so I don't know where they would go.

[00:32:54] Speaker 05:
And agencies don't have a mechanism for, or maybe they do.

[00:32:58] Speaker 05:
I can ask the government this, too.

[00:33:00] Speaker 05:
I shouldn't ask you, but is there a mechanism at that point for even the agency to receive comments based on the public inspection done at OFR?

[00:33:10] Speaker 02:
Not that I'm aware of, Your Honor.

[00:33:12] Speaker 02:
Thank you.

[00:33:14] Speaker 02:
And I think that, well, I'm sorry.

[00:33:18] Speaker 02:
I see that my time is.

[00:33:20] Speaker 06:
No, you can go ahead.

[00:33:22] Speaker 02:
Thank you.

[00:33:23] Speaker 02:
Public inspection, it's set out in 44 USC 1503.

[00:33:26] Speaker 02:
I think as the Federal Register explains it, it seems to be sort of the official stage of public release.

[00:33:33] Speaker 02:
1507 talks about that being the point when the public has constructive notice.

[00:33:41] Speaker 02:
of things that fall from it in terms of enforcement capabilities, but it does.

[00:33:46] Speaker 02:
The fact that the date and time of public release is supposed to be noted on the document suggests that the FRA considers that to be sort of the legally significant point at which the public sees the document.

[00:33:57] Speaker 02:
And, you know, it's it's been the agency's work is

[00:34:07] Speaker 02:
sort of being publicly aired.

[00:34:10] Speaker 05:
What's the point of that date?

[00:34:12] Speaker 05:
Does that become, does that show up at some point as part of the regulations publication date?

[00:34:18] Speaker 05:
Or is it, I mean, the publication date is the next, you know.

[00:34:21] Speaker 01:
Yes.

[00:34:22] Speaker 05:
The way the schedule sets it out is maybe generally the next day after public inspection.

[00:34:26] Speaker 05:
So what is the point of that date?

[00:34:29] Speaker 05:
Just starts the clock running at OFR?

[00:34:31] Speaker 02:
It's noted on the document itself the original and the National Archives.

[00:34:36] Speaker 02:
You know, I think it is I think just considered to be a legally significant stage 1507 says when the rules actually published that that creates a rebuttable presumption that it was posted for public inspection, the way it was required to.

[00:34:51] Speaker 02:
So I understand that in this day and age, people, when you look at the Federal Register, you look at the publication date, but the Federal Register Act itself sets out public inspection as its own legally significant stage.

[00:35:04] Speaker 06:
OK.

[00:35:07] Speaker 06:
Thank you.

[00:35:07] Speaker 06:
Unless my colleagues have any further questions, we'll hear from the government.

[00:35:11] Speaker 02:
Thank you, Your Honor.

[00:35:51] Speaker 03:
Morning your honor may it please the court Thomas Byron from the Department of Justice here for the federal government defendants in this case, I'd like to emphasize at the outset that.

[00:36:01] Speaker 03:
There are two distinct claims in this case, or two sets of claims, one under the APA involving the question that we believe is controlled by Kennecott and other cases, and that's whether withdrawal of a document from the Office of the Federal Register before publication is a rule requiring notice and comment or reasoned explanation under the APA.

[00:36:26] Speaker 03:
We think, again, Kennecott, as well as cases like Chen and Zhang, make clear that it's not such a rule and no procedural requirements are imposed by the APA.

[00:36:37] Speaker 03:
The second claim that the plaintiffs... What do you do with Ms.

[00:36:41] Speaker 06:
Flynn's argument that Kennecott is different because there was no

[00:36:46] Speaker 06:
filing and making available in the office.

[00:36:50] Speaker 06:
It was not made available for public inspection in the office of the Federal Register.

[00:36:54] Speaker 06:
So it just didn't deal with that question.

[00:36:57] Speaker 03:
Judge Shadal, I think you're exactly right that the Kennecott decision didn't deal with that question because it wasn't presented in that case.

[00:37:04] Speaker 03:
Nothing in the case indicates, as the district court here correctly recognized, nothing in the court's opinion in that case, as I think Your Honor may recall.

[00:37:16] Speaker 03:
indicates that any different outcome would be required under the APA.

[00:37:21] Speaker 06:
And again, this is why I wanted to say- Isn't that, I mean, it's an interesting question about how one interprets a precedent of a court, right?

[00:37:30] Speaker 06:
I mean, the other way to look at that is the Kennecott court decided a case based on a set of facts.

[00:37:42] Speaker 06:
And the question about whether that precedent

[00:37:46] Speaker 06:
binds a court in a later case with different facts, it depends on what the latter court says.

[00:37:56] Speaker 06:
There's no reason to expect that the original court would have said, oh, by the way, this principle applies even in situations where it's made available for public inspection by the Office of Federal Register.

[00:38:10] Speaker 06:
I mean, I'm not sure that's the way we interpret precedent.

[00:38:15] Speaker 03:
My apologies.

[00:38:16] Speaker 03:
I didn't mean to suggest otherwise.

[00:38:17] Speaker 03:
If I could make You don't need to apologize.

[00:38:20] Speaker 06:
It's an interesting issue, actually.

[00:38:22] Speaker 03:
I absolutely agree.

[00:38:24] Speaker 03:
And I want to make two points about the public inspection aspect of the plaintiff's argument here.

[00:38:31] Speaker 03:
So one of them is that in the Chen and Zhang decisions in the Second and Ninth and Second Circuits,

[00:38:36] Speaker 03:
contemporaneous with the Kennecott decision, also dealt with the withdrawal of a document from the Office of Federal Register that otherwise would have created a rule when it was published.

[00:38:50] Speaker 03:
In those cases, both courts held that even though the document had been made available for public inspection,

[00:38:59] Speaker 03:
And that's the very distinction the plaintiffs here rely on.

[00:39:02] Speaker 03:
Even though in that case, the 1993 AG regulation about asylum had been made available for public inspection, it was withdrawn and never took effect.

[00:39:12] Speaker 03:
And that's important, we believe, because it informs the proper understanding, not just of Kennecott itself, but of the principles Kennecott applied.

[00:39:23] Speaker 03:
And with respect to the APA claim, a document that's withdrawn before publication in the Federal Register is not a rule.

[00:39:31] Speaker 03:
It does not create binding obligations.

[00:39:34] Speaker 03:
And the withdrawal of such a document does not require notice and commentary.

[00:39:40] Speaker 06:
And what do you do with the Federal Register Act itself, which says that a document required to be published is not valid.

[00:39:53] Speaker 06:
against a person who has not had actual notice until the duplicate original is filed and a copy made available for public inspection.

[00:40:04] Speaker 06:
So that statute says that once the regulation is made available for public inspection by the office of federal register, it's valid and enforceable, at least against people with knowledge, right?

[00:40:22] Speaker 03:
Yes.

[00:40:25] Speaker 03:
You don't disagree with that, right?

[00:40:27] Speaker 03:
Absolutely right.

[00:40:29] Speaker 06:
So then just explain to me how a rule that becomes valid and enforceable as a result of notice and comment rulemaking can be withdrawn without notice and comment rulemaking.

[00:40:44] Speaker 03:
Absolutely, Judge Tatel, and I want to make clear that the scenario, the situation you described and the situation described in that provision of the Federal Register Act is not what we're dealing with here.

[00:40:56] Speaker 03:
The pre-publication enforcement of a rule can only take place when a rule is immediately effective, that is, effective before publication.

[00:41:04] Speaker 03:
Those are very rare instances as the APA Section 553

[00:41:08] Speaker 03:
D makes clear because ordinarily the effective date of a rule is hinged, is triggered by publication or service of that rule and it must be at least 30 days after publication or service.

[00:41:22] Speaker 03:
The scenario that you're describing the plaintiffs put so much weight on that, for example, the Aaron's case in the Second Circuit from I think it's 1962 reflects is where there's

[00:41:34] Speaker 03:
urgent need for immediate enforcement before publication.

[00:41:38] Speaker 03:
And the agency makes that clear and the rule is effective before that time.

[00:41:42] Speaker 05:
This rule was not to be effective immediately, was not- Can I hang on and ask you, so as to a rule that say is immediately effective in the way that you've described, and let's say it was promulgated for notice and comment rulemaking, your position, I take it, is that that rule

[00:42:04] Speaker 05:
Once it's enforceable against an individual is final, correct?

[00:42:14] Speaker 05:
It's final in the sense that, let me be crystal clear here, final in the sense that if you wanted to change, even though it has not yet been published, if you wanted to withdraw it, you would have to go through notice and comment rulemaking.

[00:42:27] Speaker 03:
Judge Mudd, I want to quibble with the hypothetical, if I may, in one respect.

[00:42:31] Speaker 03:
And that is that, remember, the 553D requirement for a shorter effective date, including a pre-publication effective date, it requires a good cause determination.

[00:42:42] Speaker 03:
And that might also equate to a similar good cause determination that notice and comment is not required.

[00:42:48] Speaker 03:
I think we don't know.

[00:42:50] Speaker 03:
We don't have a lot of examples of this, in fact, because it so rarely arises.

[00:42:54] Speaker 05:
That's fine, but I'm asking you about my hypothetical.

[00:42:57] Speaker 03:
Sure.

[00:42:57] Speaker 03:
In a scenario where there is notice and comment rulemaking and an agency determined... Could be expedited notice and comment rulemaking.

[00:43:04] Speaker 03:
Sure.

[00:43:04] Speaker 03:
And I think the FCC case that is discussed in the briefs, and I apologize, I'll think of the name of it in just a moment,

[00:43:15] Speaker 03:
it may be an example of this, where there was very expedited notice and comment available.

[00:43:22] Speaker 03:
That was one of the issues addressed.

[00:43:23] Speaker 03:
So in that scenario, to the extent that the rule had been immediately effective and forced with respect to those who had actual notice, because that's another aspect of the requirement, certainly we think that the rule was

[00:43:39] Speaker 03:
effective and did bind those parties with actual notice, the federal register.

[00:43:44] Speaker 05:
My question is whether it found the agency in the sense that it could only then withdraw that rule, even though it had not yet been published.

[00:43:52] Speaker 05:
By going through notice and comment rulemaking.

[00:43:55] Speaker 03:
Just what I think and I want to be cautious here because I'm not aware of any case all that addresses that question.

[00:44:02] Speaker 03:
I think the answer would probably be yes, but again a lot might depend on the circumstances of the particular I don't understand.

[00:44:12] Speaker 05:
So under that hypothetical, notice and comment rulemaking has been completed, albeit expedited, but it's completed.

[00:44:20] Speaker 05:
That's done.

[00:44:21] Speaker 05:
You've issued a rule for notice and comment rulemaking.

[00:44:26] Speaker 05:
It is a final rule.

[00:44:29] Speaker 05:
It is a rule of law being applied to people with actual notice.

[00:44:34] Speaker 05:
And yet you say it's unclear whether, if you wanted to withdraw that rule, you would have to go through notice and comment rulemaking.

[00:44:41] Speaker 05:
Is that the answer you just gave me?

[00:44:43] Speaker 03:
Judge, the answer I just gave you is that I'm not aware of any case law addressing it.

[00:44:47] Speaker 05:
So the answer is unsettled.

[00:44:49] Speaker 05:
The government thinks it's not a clear answer to that.

[00:44:52] Speaker 03:
I think there's not clear case law.

[00:44:55] Speaker 03:
I believe the answer is that the requirements of the APA would need to be followed in the hypothetical you give.

[00:45:04] Speaker 03:
Now, again, there may be good cause to forego notice and comment for withdrawal.

[00:45:09] Speaker 03:
Right?

[00:45:10] Speaker 05:
There could be, or maybe that would be expedited too.

[00:45:15] Speaker 05:
But I don't want to talk about good cause exceptions here.

[00:45:17] Speaker 05:
But what I want to talk about, I mean, that may be an answer to another question.

[00:45:21] Speaker 05:
But to be clear then, a rule can become final, enforceable, and I know enforceable suggests effective dates, but that's necessarily true for pre-enforcement like this.

[00:45:38] Speaker 05:
Prior to publication, the Federal Register allows you then to enforce it against the world, even if they didn't have actual notice.

[00:45:45] Speaker 05:
That's all the Federal Register publication would accomplish at that point in my hypothetical.

[00:45:50] Speaker 03:
Judge Mudd, I think that's right in the example of, as in your hypothetical rule, that is immediately effective.

[00:45:57] Speaker 03:
And that's a key distinction, I believe, Your Honor.

[00:46:00] Speaker 06:
Well, let me just ask you about that, because immediately effective.

[00:46:04] Speaker 06:
Well, first of all, the Act doesn't say that.

[00:46:09] Speaker 06:
The Federal Register Act does not say that only regulations that are

[00:46:18] Speaker 06:
only regulations that are immediately effective are valid once made public by the office of federal register.

[00:46:28] Speaker 06:
It doesn't say that.

[00:46:29] Speaker 06:
The other point is that, so let's assume you're right that the effective date is critical and that a published regulation, it gets published in the federal register and it's not effective for 30 days.

[00:46:42] Speaker 06:
Is your point that that could be changed up until the 30 day prime?

[00:46:47] Speaker 03:
No, Judge Tatel.

[00:46:49] Speaker 06:
Then I don't understand.

[00:46:50] Speaker 06:
Effective date, you can't have it both ways.

[00:46:53] Speaker 06:
In other words, if you're right that under the Federal Register Act, the only regulations that are valid and enforceable are those that were made by the agency to be immediately effective, then it must be that even once a regulation is published, it's not valid and enforceable until it's effective.

[00:47:17] Speaker 03:
Judge Tatel, I think if I may step back for just a moment, and again, return to one of your earlier questions, which was about the Federal Register Acts provision.

[00:47:27] Speaker 06:
That's what I was just talking about.

[00:47:28] Speaker 03:
Yeah, so again, I think I want to distinguish between the APA question and the FRA claim, the Federal Register Act claim.

[00:47:36] Speaker 03:
I think the two are distinct, and it's important to separate them.

[00:47:39] Speaker 03:
So the plaintiffs here say that under the APA, the APA's rulemaking requirements, as Judge Mott was asking about,

[00:47:46] Speaker 03:
apply whenever a document is withdrawn after it's been released by the agency or filed?

[00:47:52] Speaker 06:
Why don't we assume for purposes of our discussion here, at least for my benefit, that I'm not sure I agree with them, but that I do think that the significant date is the Office of Federal Register Making it Public.

[00:48:05] Speaker 06:
Let's focus on that.

[00:48:07] Speaker 03:
Sure.

[00:48:07] Speaker 03:
And so with respect to the Federal Register Act claim, Judge Settle, I think that's right.

[00:48:12] Speaker 03:
And then the question becomes, can the plaintiffs compel publication on a particular date?

[00:48:19] Speaker 03:
Because that's the basis of the claim they make under the Federal Register Act.

[00:48:24] Speaker 06:
They say that- Well, but we don't have to get to that if we think they're right on their EPA claim, right?

[00:48:28] Speaker 03:
I think that's right, Judge Settle.

[00:48:30] Speaker 06:
You agree with that, right?

[00:48:31] Speaker 06:
So if the agency here

[00:48:35] Speaker 06:
could not legally have withdrawn the regulation, then we don't have to get to the Federal Register, the rules, the Federal Register timing claim, their second claim, correct?

[00:48:49] Speaker 06:
So why don't we stick with the first claim here?

[00:48:51] Speaker 03:
So under the first claim, public inspection is not a meaningful marker with respect to the documented issue in this case.

[00:48:59] Speaker 03:
And again, I want to emphasize the difference

[00:49:02] Speaker 03:
as I did in response to Judge Millett's questions, between an example like Aaron's where the document was immediately effective and actually was never published, if I understand the court's opinion in that case correctly, and in this case where a document is not to become effective until after publication.

[00:49:19] Speaker 03:
Publication is itself then the meaningful marker, as this court held in Kanekot, in this scenario.

[00:49:27] Speaker 06:
I'll ask my question once more, and then we'll just agree to disagree.

[00:49:31] Speaker 06:
I don't see where you get that in the Federal Register Act.

[00:49:35] Speaker 06:
It doesn't say that.

[00:49:37] Speaker 06:
It says it's valid and enforceable once it's made available for public inspection.

[00:49:44] Speaker 06:
It doesn't say anything about it having had to be made effective by the agency.

[00:49:50] Speaker 06:
That's not what it says.

[00:49:51] Speaker 03:
And again, I think this goes to the distinction between the plaintiff's APA claim and their federal registrar.

[00:49:59] Speaker 03:
Nothing in the APA requires that a rule be enforceable before its effective date.

[00:50:06] Speaker 03:
And so I think the fact that some rules can be effective in the rare instances before publication doesn't necessarily compel the conclusion that plaintiffs urge here, which is that every rule must be effective before publication.

[00:50:22] Speaker 03:
That's contrary to what Kennecott held.

[00:50:25] Speaker 03:
It's contrary to what Chen and Zhang held, particularly with respect to rules already made available for public inspection by the Office of Federal Register.

[00:50:33] Speaker 04:
Mr. Hirons, could the government, I mean, the provisions in the APA and the FRA that speak about enforcement upon actual notice, do you think the government could enforce a regulation

[00:50:50] Speaker 04:
that required notice and comment rulemaking.

[00:50:53] Speaker 04:
That was a substantive rule.

[00:50:55] Speaker 04:
Do you think the government could enforce such a regulation against a person before its effective date?

[00:51:03] Speaker 03:
Before its effective date, Judge Rao?

[00:51:05] Speaker 03:
No.

[00:51:05] Speaker 03:
I think the answer is pretty clearly no.

[00:51:07] Speaker 03:
And that goes exactly to the point I was trying to make a moment ago.

[00:51:12] Speaker 04:
And do you think such a rule can become effective without publication in the federal register?

[00:51:18] Speaker 04:
So there are some types of

[00:51:20] Speaker 04:
Let's call them regulatory documents like they're like an errands or some of these other cases.

[00:51:25] Speaker 04:
I mean, do you think the rule of general applicability that affects private rights could become effective without publication.

[00:51:35] Speaker 03:
Judge Rao, I don't know the answer to that.

[00:51:38] Speaker 03:
I think it's possible.

[00:51:39] Speaker 03:
But again, it's so rare that an agency even seeks to make a rule effective immediately prior to publication that we don't have a lot of examples of it.

[00:51:49] Speaker 03:
In fact, many of the examples that we have are before the 1966 amendments to the APA.

[00:51:57] Speaker 03:
And Aaron's is a good example.

[00:51:59] Speaker 03:
The FCC case that we were talking about a moment ago is another good example.

[00:52:05] Speaker 03:
And the FCC case in particular was a change in agency regulations.

[00:52:10] Speaker 03:
It was a freeze on filing of applications for radio.

[00:52:14] Speaker 04:
Wasn't that a procedural rule in the Castler case that didn't require notice in common rulemaking in any event?

[00:52:20] Speaker 03:
I think that's probably right, Judge Rao.

[00:52:23] Speaker 03:
Again, I'm not aware of any examples of the kind of rules your hypothetical contemplates.

[00:52:31] Speaker 03:
And so I can't think of any.

[00:52:32] Speaker 03:
But at the same time, I do think that it's fair to say that nothing in the text of the Federal Register Act would necessarily preclude an agency in an instance where it could find good cause for an immediate effective date to seek to enforce a rule before publication, even if that rule is one of general applicability.

[00:52:54] Speaker 04:
What about the Congressional Review Act?

[00:52:56] Speaker 04:
Does that tell us anything about when the agency's rulemaking process becomes final?

[00:53:03] Speaker 04:
Because the Congressional Review Act says that a rule cannot become effective until the later, a major rule cannot become effective until the later of 60 days, 60 days that passes either from sending the major rule to Congress or publication in the federal register.

[00:53:24] Speaker 04:
Does that tell us anything about the question at issue here?

[00:53:32] Speaker 03:
I don't think it necessarily does judge her out, but I do think it's consistent with the emphasis that I've tried to point out about the importance of the effective date.

[00:53:43] Speaker 03:
In other words, in most situations, all but the rare scenarios where pre-publication enforcement based on actual notice is appropriate.

[00:53:53] Speaker 03:
in most situations, a rule will not be a rule if it's not published.

[00:53:59] Speaker 03:
And that's what this court held in Kennecott.

[00:54:01] Speaker 03:
That's what Chen and Zhang held.

[00:54:03] Speaker 03:
That's consistent with the case law here.

[00:54:06] Speaker 03:
The fact that in some rare scenarios, other rules have been held to be immediately enforceable, therefore valid with respect to those who have actual notice,

[00:54:17] Speaker 03:
doesn't undermine that conclusion.

[00:54:19] Speaker 03:
And I think the example of the Congressional Review Act merely bolsters that conclusion.

[00:54:27] Speaker 05:
I'm just getting really a bit confused.

[00:54:33] Speaker 05:
Do you equate effective when a rule is effective with when it's final

[00:54:41] Speaker 05:
in the sense that the agency is done with it?

[00:54:44] Speaker 03:
No judgment.

[00:54:45] Speaker 03:
Those are very different questions.

[00:54:46] Speaker 05:
Right.

[00:54:47] Speaker 05:
OK.

[00:54:48] Speaker 05:
And then do you equate effective with the completion of notice and comment rulemaking?

[00:54:54] Speaker 03:
No judgment.

[00:54:55] Speaker 05:
No.

[00:54:55] Speaker 05:
And so the question, as I understand it, is whether the agency had finished its notice and comment rulemaking process and had issued a final rule, even if it's effective date,

[00:55:10] Speaker 05:
whether it's immediate upon issuance or whether it's 30 days later or 60 days later.

[00:55:16] Speaker 05:
Because once they have a final rule that has completed notice and comment rulemaking process, it can only be withdrawn by that agency

[00:55:27] Speaker 05:
for notice and comment rulemaking.

[00:55:28] Speaker 05:
So I don't see, and I think that's what was embedded in your answer to Judge Tatel that, because otherwise they could withdraw it after publication in the federal register, because the general rule is 30 days there.

[00:55:39] Speaker 05:
So I don't understand why we're talking about effective.

[00:55:42] Speaker 05:
The reason I was asking about pre-enforcement is that suggests it's a real rule, a final rule, a completed rule, and that can happen more for federal register publications.

[00:55:53] Speaker 05:
I don't understand your emphasis on effective.

[00:55:57] Speaker 03:
Let me see if I can comment this a slightly different way.

[00:55:59] Speaker 03:
I just want to address your question.

[00:56:03] Speaker 03:
And I apologize if I have been unable to.

[00:56:05] Speaker 05:
I'm sure it's my end.

[00:56:07] Speaker 05:
I'm sure it's operator error on my end.

[00:56:09] Speaker 03:
I doubt it.

[00:56:12] Speaker 03:
I don't want to over emphasize the importance of effective date.

[00:56:15] Speaker 03:
The point I want to make is that this court's decision in Kennecott, consistent with Chen Zhang, many other decisions, is that a rule is not a rule until it's published in the Federal Register.

[00:56:26] Speaker 05:
That's not what Kennecott held was that a rule can be withdrawn

[00:56:33] Speaker 05:
without notice and comment consequences prior to public release, which is not the same thing as publication.

[00:56:42] Speaker 05:
Right there, it had not been disclosed to the public by the, at least according to the briefs in the case, had not been disclosed to the public at all.

[00:56:50] Speaker 05:
It wasn't as though the agency had disclosed it on its own.

[00:56:53] Speaker 05:
It hadn't been released for public inspection.

[00:56:56] Speaker 05:
And so the rationale in Kennecott is like, nobody's laid eyes on this outside the agency.

[00:57:03] Speaker 05:
you can't be done until you've, that's sort of the way of being done is when the agency says we're done, here it is.

[00:57:11] Speaker 05:
I mean, that's part of notice and comment rulemaking is that you explain to the public your final, you don't just issue a final decision, you explain it to the public.

[00:57:21] Speaker 05:
And so you can't even have the end of notice and comment rulemaking without a public explanation of what your final answer.

[00:57:27] Speaker 03:
is just may I just point to a particular passage in Kennecott at page 1208 of 88 of third which says that the 1993 document quote never became a binding rule requiring repeal or modification I think that's significant again this is with respect because it had never seen the light of day outside the government itself right

[00:57:51] Speaker 03:
I think that's not the only reason, Judge Mollett.

[00:57:57] Speaker 03:
If that were the case, Chen and Zhang would have had to come out differently.

[00:58:00] Speaker 03:
In other words, this court would now have to, in order to reach a different conclusion based solely on the fact of public inspection, would have to disagree with the Second and Ninth Circuit.

[00:58:13] Speaker 06:
You mean based solely on the statute?

[00:58:15] Speaker 03:
I'm sorry, Judge Sadel?

[00:58:18] Speaker 06:
I said,

[00:58:21] Speaker 06:
You mean based solely on the statute.

[00:58:25] Speaker 03:
I'm not sure I understand the question.

[00:58:26] Speaker 06:
You said if we were to reach a different result based solely on publication.

[00:58:32] Speaker 06:
I think that's what you said, right?

[00:58:34] Speaker 03:
No, Your Honor, I'm sorry.

[00:58:35] Speaker 06:
Not publication, making it available to the public.

[00:58:39] Speaker 03:
For public inspection.

[00:58:40] Speaker 03:
Public inspection.

[00:58:41] Speaker 06:
That's right.

[00:58:41] Speaker 06:
Yes, you're right.

[00:58:42] Speaker 06:
And my only response to that was, well, that's what the Federal Register Act says.

[00:58:47] Speaker 06:
But let me ask you this, since we're talking about Kennecott.

[00:58:50] Speaker 06:
Suppose this panel, this is a hypothetical.

[00:58:54] Speaker 06:
Suppose this panel does not interpret Kennecott the way you do.

[00:58:58] Speaker 06:
And suppose we do not think it resolves this case.

[00:59:02] Speaker 06:
Can you still prevail?

[00:59:03] Speaker 03:
Yes, absolutely.

[00:59:04] Speaker 06:
What's your argument without Kennecott?

[00:59:07] Speaker 03:
Well, it's principally, as I emphasized, that Kennecott doesn't stand alone.

[00:59:11] Speaker 03:
Chen and Zhang decided contemporaneously also reflect that a document can be withdrawn after public inspection.

[00:59:18] Speaker 05:
Were they grappling with this APA question there?

[00:59:21] Speaker 03:
I think they were, Judge Mullit, in the sense that the question was whether the document in that case, the 1993 document that was an attorney general regulation about asylum, could be applied to the claimant, to the asylum claimant in those cases.

[00:59:39] Speaker 05:
And I guess- Did they say it had been permissibly or impermissibly withdrawn?

[00:59:46] Speaker 03:
Will know your honor they said it had become effective because the right date was based on publication and indeed in that case it was intended to become effective.

[00:59:54] Speaker 05:
So that really was based on their views, whether that really become effective but they didn't address this question about.

[01:00:01] Speaker 05:
whether something could be withdrawn and what the consequences of that would be.

[01:00:04] Speaker 05:
I mean, as we all know, there's a lot of words here that have different roles in this process and get used sometimes interchangeably when perhaps they shouldn't.

[01:00:13] Speaker 05:
I'm sure I've made that mistake many times myself, but I just don't, one, those are not circuit precedent here, but two, I don't think there's

[01:00:22] Speaker 05:
Any conflict because they just simply weren't answering the same question I get I get that there's some, you might argue that there's some sort of at the spherical relevance to it but they simply weren't answering the question that we're asked here were they.

[01:00:38] Speaker 03:
Judge Mudd, I think it's fair to say that they weren't addressing the very specific question whether noticing comment was required or whether a reasoned decision was required to withdraw.

[01:00:48] Speaker 05:
Or whether the withdrawal itself was permissible?

[01:00:51] Speaker 03:
Judge Mudd, I think they necessarily had to answer that question.

[01:00:54] Speaker 03:
In other words, if the rule was not permissibly withdrawn, it would have

[01:01:02] Speaker 05:
Well, did they have to answer in the sense, was that argued to them?

[01:01:04] Speaker 03:
I don't know that it was argued.

[01:01:06] Speaker 03:
It wasn't specifically addressed in the opinion.

[01:01:08] Speaker 03:
Right.

[01:01:08] Speaker 05:
So as I'm saying, it's not an opinion.

[01:01:09] Speaker 05:
Right.

[01:01:11] Speaker 05:
So I guess we'd have to look at the brief to see if it was even raised in that case.

[01:01:14] Speaker 05:
If it weren't raised in that case, then we really know they weren't confronting this question.

[01:01:18] Speaker 03:
Well, one thing, if I may emphasize here, again, I want to distinguish between the APA argument and the APA claims and the FRA claims.

[01:01:27] Speaker 03:
And I see I'm over my time if you'll indulge me for just a moment.

[01:01:31] Speaker 06:
So you go ahead, because I have another question, too.

[01:01:33] Speaker 06:
It's okay.

[01:01:33] Speaker 03:
Thank you, Your Honor.

[01:01:36] Speaker 03:
I want to distinguish between those claims because, again, in the Kennecott case itself, the court distinguished between those two types of claims, and it addressed the APA claim with respect to whether the withdrawal of the document required notice and comment or reason decision-making

[01:01:53] Speaker 03:
It addressed separately the FRA claim, and in addressing the FRA claim, the court asked the question whether the Office of the Federal Register's regulations were permissible interpretations of the Federal Register Act, the statute itself.

[01:02:08] Speaker 03:
And I think that's the appropriate question to ask here with respect to the meaning of the Federal Register Act to the extent the courts relying on that.

[01:02:15] Speaker 03:
And here the regulations of the Office of the Federal Register include a specific reference to withdrawal of a document after public inspection.

[01:02:27] Speaker 03:
I believe that's in

[01:02:30] Speaker 03:
I apologize, I'll need to pull the site, but I think it's 5.17.

[01:02:34] Speaker 03:
And that it permits the withdrawal even after public inspection.

[01:02:40] Speaker 03:
So the question about the Federal Register Act that has been informing some of the court's questions, I believe, should I think be understood in light of the Office of the Federal Register's interpretation of that.

[01:02:53] Speaker 05:
I think the question is- In Seneca, we didn't hold that every single thing

[01:02:57] Speaker 05:
in every Federal Register regulation was permissible.

[01:03:00] Speaker 05:
We were addressing the application for public inspection because the statute itself is, I think, just pointed out, the statute itself gives legal consequence to public inspection.

[01:03:13] Speaker 05:
And so an agency regulation could not certainly countermand the plain text of the statute in that way.

[01:03:19] Speaker 03:
Absolutely, gentlemen, I didn't know.

[01:03:22] Speaker 03:
The analytical framework that the court undertook with respect to those regulations is appropriate here as well in terms of understanding the Federal Register.

[01:03:35] Speaker 03:
There was a question during my opposing counsel's argument about whether the regulations at the time of Cannecott also permitted withdrawal of a document after public inspection.

[01:03:49] Speaker 03:
I don't have those earlier regulations here, but I'd be happy to find them and cite them for the court and address that question directly because, again, that question just wasn't addressed in Cannecott.

[01:04:01] Speaker 03:
So, so with respect to the APA claim, Your Honor, I do want to emphasize the impracticability of plaintiffs argument in the grave uncertainty that it would introduce the idea that a rule becomes a rule valid requiring.

[01:04:17] Speaker 03:
the ordinary notice, comment, reason, decision-making to make any changes, and presumably effective on all who have actual notice when it's made public by the agency, or even with respect to everyone after it's posted for public inspection by the Office of the Federal Register, that would create enormous uncertainty.

[01:04:35] Speaker 06:
Why would the latter create enormous uncertainty?

[01:04:39] Speaker 06:
Because... Anymore than publication.

[01:04:42] Speaker 06:
Publication in the Federal Register, I mean, it's...

[01:04:47] Speaker 06:
comes out online.

[01:04:49] Speaker 06:
It's published digitally.

[01:04:51] Speaker 06:
Sure, it comes out on paper also, but in terms of the notice to the public, I'm not sure what the difference is between the Office of Federal Register putting it on its website and four days later appearing on the digital version of the Federal Register.

[01:05:11] Speaker 03:
Just to have a reason.

[01:05:12] Speaker 03:
Oh, sorry, Your Honor.

[01:05:14] Speaker 06:
No, that's all.

[01:05:15] Speaker 06:
What's the difference?

[01:05:16] Speaker 03:
I think that the reason it would create uncertainty is that over the last 30 years, there have been multiple instances.

[01:05:23] Speaker 03:
Chen and Zhang is one.

[01:05:25] Speaker 03:
We cited at least two other documents that were withdrawn at public inspection in 2017.

[01:05:30] Speaker 03:
There are at least two more that I'm aware of in 2021 that we cited in our brief as well that were withdrawn after public inspection.

[01:05:38] Speaker 03:
So the uncertainty goes to what is the ongoing effect.

[01:05:41] Speaker 06:
They weren't challenged though, were they?

[01:05:44] Speaker 03:
That's right, Judge Tatel, although, as I pointed out in Chen and Zhang, several.

[01:05:50] Speaker 06:
Let me just ask you a different question.

[01:05:53] Speaker 06:
About your, your view here is that your basic view the government's basic view is that.

[01:06:02] Speaker 06:
is that the key here is Federal Register publication, that sets the key date.

[01:06:10] Speaker 06:
So I wanna ask you about a different provision of the Federal Register Act, which it has a special filing provision in it.

[01:06:19] Speaker 06:
And it's here, I'll just read it to you.

[01:06:22] Speaker 06:
For when a regulation quote is issued, prescribed or promulgated

[01:06:30] Speaker 06:
outside of the District of Columbia, issued, prescribed, or promulgated outside the District of Columbia.

[01:06:38] Speaker 06:
So my question is, how could a regulation be issued, prescribed, or promulgated outside the District of Columbia if, as you say, publication in the Federal Register is what's critical?

[01:06:52] Speaker 03:
Judge Taito, I think you're absolutely right.

[01:06:57] Speaker 03:
And the premise of your question, I think, is that a rule can be issued, prescribed, or promulgated without publication in the Federal Register or prior to publication in the Federal Register.

[01:07:08] Speaker 03:
I think the Federal Register Act also supports that, at least arguably in 44 USC 1507.

[01:07:14] Speaker 06:
But then if a regulation is issued, prescribed, or promulgated,

[01:07:21] Speaker 06:
Your theory is it can nonetheless be withdrawn without notice and comment rulemaking, right?

[01:07:27] Speaker 03:
Before publication, yes, your honor.

[01:07:29] Speaker 06:
Okay, I understand your position.

[01:07:31] Speaker 06:
Unless Judge Rao or Judge Milano have any other questions.

[01:07:34] Speaker 05:
Sorry, can I ask one more?

[01:07:35] Speaker 05:
Yeah, go ahead.

[01:07:37] Speaker 05:
That is the question I was asking your friend on the other side about, and that is this oddly named public inspection process.

[01:07:47] Speaker 05:
Is there anything either in OFR regulations that we didn't see or handbook or agency regulations or practice that provides a mechanism for public comment as part of that public inspection?

[01:08:05] Speaker 03:
No Judge Mollett, but there is a mechanism in the OFR regulations that provides for agency and OFR exchange of information about errors in the document.

[01:08:19] Speaker 03:
And that includes a basis for withdrawal of the document even after public inspection.

[01:08:25] Speaker 03:
And that is, I believe, in 1 CFR 18.13, if I can take a moment to find it.

[01:08:30] Speaker 03:
A document that's been filed for public inspection but not yet published may be withdrawn from publication or corrected by the submitting agency.

[01:08:39] Speaker 03:
And it also says extensive corrections may require agency withdrawal of the document from publication.

[01:08:45] Speaker 03:
So I think that reflects that none of these regulations nor the handbook are about the public's involvement.

[01:08:52] Speaker 03:
They are, as we explained in our brief, about the interchange of information and the efficient operation

[01:08:58] Speaker 03:
of the exchange of information between OFR and the rulemaking agency.

[01:09:03] Speaker 05:
I want to... I'm sorry, I just filed, just make sure I've got all these words right, filed for public inspection means filed by the federal register notes or is that when the agency files it with OFR and it gets its state stamp and stuff

[01:09:20] Speaker 03:
No, Your Honor.

[01:09:20] Speaker 03:
So let me take a moment, if I may, to address both the statutory and the regulatory framework here, because I think the plaintiffs have misunderstood some key aspects of how OFR operates.

[01:09:33] Speaker 03:
And again, this is understandable because OFR's procedures are designed to ensure smooth operation with respect to the office and the rulemaking agencies, not with respect to enforcement by plaintiffs.

[01:09:45] Speaker 03:
So 44 USC 1503 talks about filing documents.

[01:09:49] Speaker 03:
And this is, again, after the confidential processing period, which ordinarily includes extensive editing, review, exchanges of information between the office and the rulemaking agency.

[01:10:00] Speaker 05:
Wait, wait, wait.

[01:10:00] Speaker 05:
1503 is talking about after it's already been submitted?

[01:10:03] Speaker 03:
Yes.

[01:10:04] Speaker 05:
I thought that was talking about when it was original and two duplicates are given to OFR shall be filed with the Office of Federal Register

[01:10:13] Speaker 05:
And then this confidential period happens.

[01:10:18] Speaker 03:
The statute's not entirely clear about this, and that's why the regulations and the handbook are important in understanding how OFR actually operates.

[01:10:26] Speaker 03:
And so I'll turn then to the... Wait, so you read 1503.

[01:10:32] Speaker 05:
I'm really confused here.

[01:10:36] Speaker 05:
I had thought

[01:10:37] Speaker 05:
that this, because this is the provision, isn't this provision that talk about, I thought this was the trigger when it got its sort of time and date stamp.

[01:10:46] Speaker 03:
Yes, Your Honor.

[01:10:47] Speaker 05:
And that's at the end of the confidential period here?

[01:10:52] Speaker 03:
Yes, Your Honor.

[01:10:52] Speaker 03:
And I think that's what led to some of the confusion in plaintiff's argument.

[01:10:55] Speaker 03:
So if I can just address this, I'll explain a little bit further.

[01:10:58] Speaker 03:
I apologize for the length of time it takes to explain this.

[01:11:03] Speaker 03:
So looking at the OFR regulations, which are again in our addendum at page seven,

[01:11:08] Speaker 03:
and subsequent pages.

[01:11:10] Speaker 03:
The receipt and processing talks about the receipt of the document by the Office of the Federal Register when it's sent from the rulemaking agency.

[01:11:19] Speaker 03:
That precipitates, that begins the confidential processing period, includes extensive review, editing, corrections back and forth with the agency, etc.

[01:11:30] Speaker 03:
That confidential processing period also ordinarily includes extensive formatting, working with the daily volume office of the Federal Register to ensure that there will be room in the particular volume of the day that's going to be selected.

[01:11:44] Speaker 05:
Yeah, that's just all logistical stuff.

[01:11:46] Speaker 05:
I mean, I'm sure it takes time and effort, but it's not substantive.

[01:11:51] Speaker 03:
Well, Judge Millett, no, I think you're right.

[01:11:53] Speaker 05:
Is the OFR approved reading this thing to say, I don't think this makes substantive sense?

[01:11:58] Speaker 05:
Are they providing substantive comments or are they going you've misspelled?

[01:12:03] Speaker 03:
There are some substantive requirements that the office imposes with respect to its rules, but it doesn't impose.

[01:12:12] Speaker 05:
The substance of the federal rule itself?

[01:12:15] Speaker 03:
Not the policy judgment of the rulemaking agency.

[01:12:19] Speaker 05:
What kind of substance does OFR enforce?

[01:12:21] Speaker 03:
Well, there are certain requirements in the agency's rules and in the handbooks, both the document draft.

[01:12:29] Speaker 05:
Can you give me an example?

[01:12:30] Speaker 05:
It's substantive?

[01:12:32] Speaker 05:
You're defining the substantive?

[01:12:33] Speaker 05:
Well, I don't want...

[01:12:34] Speaker 03:
Your honor, I don't want to overstate the point about substantive.

[01:12:38] Speaker 03:
There are things that this is not just typo correct.

[01:12:41] Speaker 05:
You can understate it by just giving me an example.

[01:12:43] Speaker 03:
I don't have an example ready at hand, Judge Mudd.

[01:12:45] Speaker 03:
I apologize for not having that.

[01:12:48] Speaker 05:
Anything else?

[01:12:50] Speaker 05:
Just follow up.

[01:12:51] Speaker 03:
Go ahead.

[01:12:52] Speaker 03:
I just wanted to.

[01:12:53] Speaker 03:
Go ahead, your honor.

[01:12:55] Speaker 03:
I apologize I want you need to finish I'm sorry.

[01:12:57] Speaker 03:
I just wanted to finish the answer about the process point with respect to the regulations, so the receipt and processing takes place, but the public inspection and the.

[01:13:09] Speaker 03:
timing of the filing, which takes place after that, the filing and public inspection only takes place after the publication date has been assigned.

[01:13:20] Speaker 03:
So that's one of the fundamental misunderstandings that plaintiffs have about the way this works.

[01:13:25] Speaker 06:
What does that have to do with the issue before us?

[01:13:27] Speaker 03:
Your honor, I think it has to do principally with the Federal Register Act claim, but it also has to do with.

[01:13:35] Speaker 06:
Why, why, what difference does it make whether the agency sets the publication day before after that two day period for purposes of the case before us.

[01:13:46] Speaker 03:
Because in the Federal Register Act claim, the plaintiffs seek to compel, they argue that the Office of the Federal Register was required by its regulations as a mandatory matter enforceable by 7061 under mandamus standards required to publish on the 23rd, not the 24th.

[01:14:03] Speaker 06:
But you've agreed that, didn't you agree in the district court that they're right about that?

[01:14:09] Speaker 03:
No, Your Honor, we did not.

[01:14:12] Speaker 03:
And the district court did not so find.

[01:14:14] Speaker 03:
That's a key, that's a really important part of the argument here.

[01:14:19] Speaker 03:
The plaintiffs are seeking to compel publication under the Federal Register Act in their separate claim against OFR based on their theory that the regulations required publication on a particular date.

[01:14:33] Speaker 03:
That's not correct, Your Honor.

[01:14:36] Speaker 04:
Can I just ask one practical question?

[01:14:38] Speaker 04:
If this- Judge Muller, do you have anything else?

[01:14:40] Speaker 04:
Oh, I had one just- Judge Muller, go ahead.

[01:14:42] Speaker 04:
Yes, I just had one quick question.

[01:14:44] Speaker 04:
If this court were to rule that the point at which a rule becomes final and cannot be withdrawn without notice and comment rulemaking was public inspection, does the government have a view of how many other rules that were withdrawn using that method?

[01:15:02] Speaker 04:
Would those other rules also then be in effect based on the reasoning of this court's opinion if we were to set such a line?

[01:15:12] Speaker 04:
And does the government have any idea of how many

[01:15:14] Speaker 04:
such rules would effectively spring into effect from the past, I don't know, 10, 20, 30 years.

[01:15:22] Speaker 03:
Deirdre, we haven't canvassed that far back.

[01:15:24] Speaker 03:
I noted in an answer to Judge Tito's question that our brief identifies at least two other documents in 1997 and at least two documents in 2021 that were withdrawn after public inspection and that Chen and Zhang referred to one in 1993.

[01:15:41] Speaker 03:
undoubtedly there are more.

[01:15:42] Speaker 03:
I think it's hard to know.

[01:15:45] Speaker 03:
We could certainly conduct an extensive survey to determine that, but I think the uncertainty is what I wanted to emphasize.

[01:15:53] Speaker 04:
Would your view be that those rules would then have to be published under the reasoning, like if we were to set the rule that the humane society is requesting here?

[01:16:07] Speaker 03:
Not necessarily Judge Rao.

[01:16:09] Speaker 03:
I think it would depend on whether, Judge Tatel asked the question, whether anybody had challenged those.

[01:16:16] Speaker 03:
And I think that might be relevant.

[01:16:18] Speaker 03:
I think the limitations, statute of limitations might be relevant to particular circumstances.

[01:16:24] Speaker 03:
It would, of course, depend as well on the reasoning and conclusion of any decision this court might reach.

[01:16:31] Speaker 05:
I would urge the court to- So just to be clear, the statute of limitations on that.

[01:16:36] Speaker 05:
1970 whatever rules has been a long since I've run for any APA thing.

[01:16:40] Speaker 03:
I'm sorry, Judge Mott, I'm not sure what you mean by 1970s.

[01:16:44] Speaker 05:
You mentioned the night that I think is this the the 1970s?

[01:16:49] Speaker 05:
1993 your honor.

[01:16:51] Speaker 05:
1993 I'm sorry I thought you said something from the 1970s.

[01:16:54] Speaker 03:
Regardless 1993, 1997 and 2021 were the examples I gave.

[01:17:00] Speaker 05:
Right.

[01:17:00] Speaker 05:
So 93 and 97, I assume the government's position would be this.

[01:17:05] Speaker 05:
Thank you very much.

[01:17:06] Speaker 05:
The statute of limitations has run.

[01:17:07] Speaker 03:
We'd need to analyze that if, if a claim were brought, your honor.

[01:17:12] Speaker 06:
Oh, you're not.

[01:17:13] Speaker 06:
Okay.

[01:17:13] Speaker 06:
All right.

[01:17:14] Speaker 06:
I think, I think we have exhausted the subject.

[01:17:18] Speaker 03:
Thank you, your honor.

[01:17:19] Speaker 03:
There's a court to affirm.

[01:17:20] Speaker 03:
Thank you.

[01:17:21] Speaker 06:
Let's see, Ms.

[01:17:22] Speaker 06:
Flynn, you used up all your time, but you can have three minutes.

[01:17:27] Speaker 02:
Thank you, your honor.

[01:17:28] Speaker 06:
And I'm sure you have a lot to say, but could you start with this point the government's making about effective date.

[01:17:35] Speaker 02:
Yes, your honor.

[01:17:36] Speaker 02:
So, you know, as I understand the government's presentation today they're saying that the rule is either publication, or it's when the rule is effective date.

[01:17:45] Speaker 02:
starts when the rules effective effective data is passed.

[01:17:48] Speaker 02:
And I guess there's each of those lines have their own problems and combining them.

[01:17:52] Speaker 02:
I don't think solves them.

[01:17:53] Speaker 02:
So publication.

[01:17:54] Speaker 02:
We've already talked about the statutes that issue.

[01:17:56] Speaker 02:
Make it clear that at least some unpublished rules can be enforced and effective date.

[01:18:00] Speaker 02:
There's a line of precedent from this court and other courts saying that even if a rules effective date has not yet come to pass, the agency can't postpone it without notice and comment.

[01:18:09] Speaker 02:
So we know that the effectiveness of the operation of a rule does not determine whether or not it's law.

[01:18:14] Speaker 02:
That's the same way it works for statutes, for instance, that have delayed effective dates.

[01:18:19] Speaker 02:
If I could move on to a couple of points that.

[01:18:23] Speaker 02:
So we talked about the potential disruption caused by a decision here.

[01:18:27] Speaker 02:
As the government said, they did not attempt to sort of put a number on that for this court.

[01:18:33] Speaker 02:
We tried to look into it ourselves.

[01:18:36] Speaker 02:
For instance, the rules of the government sites in their brief that were also withdrawn at the same time, one of them actually was published anyway.

[01:18:42] Speaker 02:
So that one, there's no problem.

[01:18:45] Speaker 02:
The other one they point to from that same transition, a substantive rule that same name was actually fully published before the transition.

[01:18:51] Speaker 02:
This document, it's not clear what it would have done, but that rule eventually went into effect after some post-moment.

[01:18:56] Speaker 02:
So I'm not sure we can see a problem there.

[01:18:59] Speaker 02:
Overall, we were only able to identify at most 15 rules that were withdrawn after public inspection.

[01:19:06] Speaker 02:
For about half of those, they were just published anyway.

[01:19:09] Speaker 02:
Some of them were subject to legislative fixes like the rule in Chang and Chen and Zong, where Congress actually stepped in.

[01:19:16] Speaker 02:
Other times, the rule basically went to effect after notice and comment.

[01:19:20] Speaker 02:
So at the end of the day, we only identified one rule that is completely similarly situated to ours.

[01:19:26] Speaker 02:
you know, it was withdrawn after public inspection that, you know, potentially a decision in this case could implicate, but we'd also say that, you know, this decision is about the Horse Protection Act and the rule making authority there.

[01:19:40] Speaker 05:
What was the date?

[01:19:41] Speaker 05:
What was the date that the other one was withdrawn?

[01:19:44] Speaker 02:
I believe it was the latest transition, Your Honor.

[01:19:46] Speaker 05:
The 21 one?

[01:19:48] Speaker 04:
Yes.

[01:19:48] Speaker 04:
Flynn, in the cases where, in the instances you say where a rule was withdrawn but then published anyway, do you mean that it was

[01:19:56] Speaker 04:
withdrawn, but then sent back to the federal register and then published.

[01:20:02] Speaker 02:
I'm not sure of the mechanisms, but I, my understanding is that the, the rule that was sent was published, like the agency followed through with it after, you know, the, the new administration allowed it to happen rather, you know, as opposed to withdrawing it entirely or going through notice and comment again, or replacing it with a different rule.

[01:20:21] Speaker 05:
So the published rule was identical to the one that had been, so they sort of pulled it back and said, oh, never mind, and then let it go forward to publication or resubmitted it for publication or something?

[01:20:34] Speaker 02:
Yes, Your Honor, or at least substantially identical.

[01:20:39] Speaker 02:
So the government mentioned, of course, the Chen and Zong decisions.

[01:20:43] Speaker 02:
I first would point out that I've

[01:20:45] Speaker 02:
A ruling against us in this case would create a split with the Fifth Circuit in the Arlington oil mills versus Knievel case, where the circuit ruled that a rule announced in a press release could not be overtaken without another round of notice and comment.

[01:20:57] Speaker 02:
As Your Honor Judge Malik pointed out, I think Chen and Zong were addressing a different issue.

[01:21:03] Speaker 02:
Those were habeas claims.

[01:21:05] Speaker 02:
The court was trying to figure out whether it could enforce that withdrawn rule in those immigrants cases.

[01:21:09] Speaker 02:
It was not looking at the type of APA claim we have here.

[01:21:12] Speaker 02:
And I think the Second Circuit's analysis in particular, which is, you know, sort of the lengthier decision on this topic as compared to the ninths, the court does recognize that sometimes unpublished rules can be enforced.

[01:21:23] Speaker 02:
They acknowledge that outside of their discussion, but they hinge their ruling on a far more narrower point, which was that the rule there

[01:21:31] Speaker 02:
had a placeholder effective date that was hinged on Federal Register publication.

[01:21:35] Speaker 02:
We don't think that's correct, but it's a much narrower ruling than what the government's asking for here, which is that any rule that is not published cannot take effect and it is invalid.

[01:21:47] Speaker 02:
I'd also just clarify that our position is not that all rules after the point at which the agency finishes its decision making process and releases the rule

[01:21:56] Speaker 02:
We're not arguing that they're immediately effective at that point.

[01:21:58] Speaker 02:
The effective date still governs for substantive rules with delayed effective dates.

[01:22:03] Speaker 02:
It's just that at that point, the agency can't turn back.

[01:22:06] Speaker 02:
We're not arguing they're generally enforceable against the public at that point.

[01:22:10] Speaker 02:
And then Judge Rao, you brought up the Congressional Review Act.

[01:22:14] Speaker 02:
And I think that's

[01:22:16] Speaker 02:
helpful and that it illustrates that the government's logic would spread much more broadly.

[01:22:21] Speaker 02:
So, you know, if the government's arguing that because normally substantive rules can't go into effect until 30 days after publication, it must mean federal register publication is a necessary condition for validity, then I think the same would have to carry over to the Congressional Review Act, right?

[01:22:36] Speaker 02:
That if an agency did not submit that required report, that the rule itself would be invalid, it never issued, it never became law.

[01:22:45] Speaker 04:
I think that is what happens under the Commercial Review Act.

[01:22:49] Speaker 02:
If the report never, sorry, if the report is never sent, then the rule is issued.

[01:22:54] Speaker 02:
I don't understand it to be the government's position, but maybe it would be, Your Honor.

[01:22:59] Speaker 02:
If this Court has no further questions.

[01:23:06] Speaker 06:
Anything else, Judge?

[01:23:07] Speaker 06:
I don't know, Judge.

[01:23:08] Speaker 06:
Ms.

[01:23:08] Speaker 06:
Flynn, Mr. Byron, thank you very much for your arguments.

[01:23:11] Speaker 06:
The case is submitted.

[01:23:12] Speaker 02:
Thank you, Your Honor.