National Council of Agricultural Employers v. United States Department of Labor

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 1, 2025 Decided July 11, 2025
No. 24-5072
NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS,
APPELLANT
v.
UNITED STATES DEPARTMENT OF LABOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-03569)
David R. Dorey argued the cause and filed the briefs for
appellant.
Daniel Winik, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, at the time the brief was filed, and Charles W.
Scarborough, Attorney.
Before: KATSAS and CHILDS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.

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GINSBURG, Senior Circuit Judge: This case presents a
recurring question of administrative law: At what point does a
substantive rule submitted by an agency to the Office of the
Federal Register (OFR) for publication become final so that it
cannot be withdrawn or amended without going through the
notice-and-comment requirements of the Administrative
Procedure Act? The answer to this question is particularly
significant during transitions between one presidential
administration and the next. Those periods are often marked by
a flurry of rulemaking activity. Agency leaders of the departing
administration work furiously to finalize and publish new
regulations, then newly appointed leaders act expeditiously to
withdraw unpublished rules that might be inconsistent with the
new administration’s priorities, while through it all the OFR
beavers away trying to keep up with the changes.
Ambiguity regarding the legal significance of processing
by the OFR can result in regulatory uncertainty that persists
well past the presidential transition period, as this case
illustrates. In 2019 the Department of Labor (DoL) issued a
notice of proposed rulemaking (NPRM) to amend its 2010
regulations regarding a visa program. During the last days of
the Trump Administration in 2021, the DoL announced to the
public and submitted to the OFR for publication in the Federal
Register what it characterized as a final rule. While the OFR
was processing the rule, however, the DoL under President
Biden withdrew it. Then, in 2022, the DoL issued a new rule
based upon the 2019 NPRM.
The question here is which rule marked the culmination of
the rulemaking process that began in 2019, the 2021 Trump
rule or the 2022 Biden rule? Or, more generally, at what point
does a substantive rule submitted to the OFR for publication
become final so that a new round of notice and comment is
required before the agency can change or withdraw the rule?

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In this case, we hold the rulemaking process culminated in
the 2022 Rule. A substantive rule is not ordinarily final until
the OFR makes it available for public inspection. At that
juncture the rule is “duly fixed,” GPA Midstream Ass’n v.
Dep’t of Transp., 67 F.4th 1188, 1195 (D.C. Cir. 2023), and
“becomes ‘valid’ against the public at large,” Humane Soc’y v.
USDA, 41 F.4th 564, 570 (D.C. Cir. 2022) (quoting 44 U.S.C.
§ 1507). Although an agency can “for good cause,” 5 U.S.C.
§ 553(d)(3), make a rule final without processing by the OFR
— by putting it into effect expeditiously and giving actual
notice of the official rule to members of the public — the DoL
did not do so here. Instead, the DoL made the 2021 Rule
contingent upon processing by the OFR and then withdrew the
rule before it became final.
I. Background
A. Statutes and Regulations
This case involves the interplay among three statutes: The
APA, the Freedom of Information Act (FOIA), and the Federal
Register Act (FRA). As explained in more detail below, the
APA sets out the requirements for rulemaking, id. § 553; the
FOIA requires federal agencies to publish substantive rules in
the Federal Register, id. § 552(a)(1); and the FRA prescribes
the publication process, 44 U.S.C. §§ 1501–11.
The APA defines a rule, in relevant part, as “the whole or
a part of an agency statement of general or particular
applicability and future effect designed to implement, interpret,
or prescribe law or policy.” 5 U.S.C. § 551(4). Rulemaking is
the “agency process for formulating, amending, or repealing a
rule.” Id. § 551(5). The rulemaking process begins when an
agency provides an NPRM and solicits public comments about
the proposal. See id. §§ 553(b)–(c) (setting forth the general

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notice-and-comment requirement and excluding certain
species of rules from that requirement).
More specifically, an agency must publish a “[g]eneral
notice” of proposed rulemaking in the Federal Register
“unless persons subject thereto are named and either person-
ally served or otherwise have actual notice thereof.” Id.
§ 553(b). Then the agency is required to “give
interested persons an opportunity to participate in the rule
making through submission of written data, views, or
arguments.” Id. § 553(c). The FOIA instructs agencies to
“publish in the Federal Register . . . substantive rules of general
applicability adopted as authorized by law.” Id. § 552(a)(1)(D).
It also describes the consequence of an agency’s failure to
publish a rule in the Register: “[A] person may not in any
manner . . . be adversely affected by a matter required to be
published in the Federal Register and not so published,” except
to the extent the “person has actual and timely notice of the
terms thereof.” Id. § 552(a)(1) (cleaned up). The APA further
provides that “[t]he required publication . . . of a [final]
substantive rule shall be made not less than 30 days before its
effective date,” subject to certain exceptions not here relevant.
Id. § 553(d).
The FRA likewise requires rules to be published in the
Federal Register and describes a similar consequence for
unpublished rules that are not available for public inspection.
In particular, it provides that three categories of documents
must be published in the Federal Register: (1) certain presiden-
tial proclamations and executive orders, (2) “documents or
classes of documents that the President may determine from
time to time have general applicability and legal effect,” and
(3) “documents or classes of documents that may be required
so to be published by Act of Congress.” 44 U.S.C. § 1505(a).
The FRA defines “document” to include a “regulation” or

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“rule” that has been “issued, prescribed, or promulgated by a
Federal agency.” Id. § 1501.
The FRA prescribes in detail the process that culminates
in the publication of a document. For present purposes, the key
step in that process is the OFR’s making the document
available for public inspection. See id. § 1503. As we explained
in Humane Society, public inspection puts the public on
constructive notice of the document. 41 F.4th at 570. “That is
the ‘day and hour’ the [FRA] requires be noted for posterity,”
id. (quoting 44 U.S.C. § 1503), for at that moment the
document “becomes ‘valid’ against the public at large,” id.
(quoting 44 U.S.C. § 1507). Conversely, a document required
by the FRA to be published in the Federal Register “is not valid
as against a person who has not had actual knowledge of it until
the document has been filed with [the OFR] and a copy made
available for public inspection.” 44 U.S.C. § 1507. “[W]hen
withdrawing a rule that has been filed for public inspection but
not yet published in the Federal Register,” the agency must
“provide notice and an opportunity for comment.” Humane
Soc’y, 41 F.4th at 565; see, e.g., Licensing of Designated
Qualified Persons and Other Amendments Withdrawal,
88 Fed. Reg. 74336, 74341/2 (2023) (withdrawing the rule at
issue in Humane Society after providing notice to the public
and an opportunity to comment upon the withdrawal).
The FRA also established the Administrative Committee
of the Federal Register and charged it with writing regulations
governing the “manner and form in which agencies submit
documents for publication in the Federal Register.” 44 U.S.C.
§ 1506(a)(3). The Committee has promulgated detailed
regulations prescribing how the OFR “receives documents”
and pursuant to which “each document shall be held for
confidential processing until it is filed [by the OFR] for public
inspection.” 1 C.F.R. § 17.1. During this confidential

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processing period, the OFR reviews the document for
compliance with its regulations, works with the submitting
agency to resolve problems, and reserves the right to return to
the agency any document that “does not meet the minimum
requirements of [the OFR’s regulations].” 1 C.F.R. § 2.4(b);
see Kennecott Utah Copper Corp. v. DOI, 88 F.3d 1191, 1205
(D.C. Cir. 1996) (explaining the OFR “reviews and edits
documents” prior to filing them for public inspection); Agency
FAQs for OFR, Nat’l Archives (2024), https://perma.cc/9NTX-
KLTF (hereinafter OFR FAQs) (explaining the processing time
for a document depends upon “the number and scale of edits
needed” and “the time it takes to work with your agency to
resolve the edits”). Notwithstanding the FRA’s requirement
that, upon filing, a document be made “immediately available
for public inspection,” 44 U.S.C. § 1503, we have upheld as
reasonable the OFR’s regulations providing for this processing
period. Kennecott, 88 F.3d at 1206 (applying the now-
abrogated Chevron doctrine).
The OFR’s regulations further authorize the Director of
the OFR to provide agencies with “instructions” to facilitate
compliance with the statutory and regulatory scheme. 1 C.F.R.
§ 15.10. The OFR has accordingly provided agencies with
comprehensive guidance for drafting documents. OFR, Nat’l
Archives and Recs. Admin., Document Drafting Handbook i
(Aug. 2018 ed., rev. Oct. 2023), https://perma.cc/W694-DYBF
(hereinafter Handbook).1 Pursuant to the OFR’s regulations
and guidance, an agency may correct or withdraw a document
prior to its publication. 1 C.F.R. § 18.13; Handbook §§ 5.1–
5.3.
1 The parties cite different versions of the handbook, and a new
version was released effective June 2025. The relevant aspects of the
OFR’s processes are not, however, in dispute, and the versions do
not materially differ for present purposes.

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The process for an agency to correct a rule that has been
submitted to the OFR depends upon whether the OFR has filed
the document on its public inspection docket. See Public
Inspection, Federal Register, https://www.federalregister.gov/
public-inspection/current (last visited June 28, 2025). An
agency can ask the OFR to make “minor corrections” to a
document that the OFR has not yet filed for public inspection,
which the OFR will implement directly “as time and resources
permit.” Handbook § 5.2. The OFR can similarly correct a
“substantive error . . . during the review process.” Id. Still,
extensive changes are “difficult [for the OFR] to make once [it
has] assigned a publication date,” id., which it does prior to
filing a document for public inspection, 1 C.F.R. § 17.2(a). See
Handbook § 8.8 (“The OFR assigns a publication date once a
document meets [the OFR’s] publication requirements”). After
the OFR places a document on the public inspection docket, an
agency can still ask the OFR to make corrections. Id. § 5.2. If
the OFR does so, however, it will “re-post [the] document on
public inspection [to the docket] with an editorial note.” Id.
As for withdrawing a document submitted to the OFR for
publication, the OFR’s guidance draws a similar distinction
between documents already filed and documents not yet filed
on the public inspection docket. If an agency withdraws a
document before the OFR has put it on the docket, then the
OFR simply makes the physical copy of the rule “available [to
the agency] for pick-up.” Id. § 5.3; see Kennecott, 88 F.3d at
1205–06 (explaining an agency may withdraw a rule during the
OFR’s confidential processing period). If, however, an agency
withdraws a document that the OFR has put on the inspection
docket, which it does “on the business day before the date of
publication,” then the OFR “will replace [the agency’s] docu-
ment with a document stating the fact of the withdrawal.”
Handbook §§ 5.3, 8.5. “That document remains on public
inspection through the date it was originally scheduled to

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publish,” and it “becomes [the OFR’s] record” and is therefore
not returned to the agency. Id. § 5.3; see, e.g, Public Inspection
Issue, Federal Register (Jan. 26, 2021), https://perma.cc/K62A-
5X8P (explaining the FDA “withdrew this [rule] while it was
on public inspection” and a “copy of the [FDA’s] withdrawal
request is available at the [OFR],” while replacing the copy of
the rule on public inspection with a new document stating
“THIS DOCUMENT WAS WITHDRAWN”).
The OFR may process a document under its “regular,”
“emergency,” or “deferred” schedules. 1 C.F.R. §§ 17.1–7.
Under the regular schedule, which applies by default, a
“document received [by the OFR] shall be filed for public
inspection only after it has been received, processed and
assigned a publication date.” Id. § 17.2(a). An agency can
request that the OFR assign a document to its emergency
schedule, which “provides for the fastest possible public access
to a document.” Id. § 17.5. To do so, the agency must submit a
letter to the OFR “describ[ing] the emergency and the benefits
to be attributed to immediate public access.” Id. § 17.6(a). If
the Director approves the request, then the document “shall be
filed [for public inspection] as soon as possible following
processing and scheduling.” Id. § 17.6(c). The OFR can also
assign a document to a deferred schedule when the submitting
agency so requests or the document requires extra processing
time (e.g., due to length). Id. § 17.7(a).
B. The 2021 and 2022 Rules
As explained in detail below, and as depicted in the
following figure, the DoL began a rulemaking in 2019 to revise
a nonimmigrant visa program and submitted a “final rule” to
the OFR for publication in 2021. Because the DoL withdrew
the 2021 Rule during the OFR’s confidential processing period,
and in 2022 submitted a new “final rule,” only the latter rule

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was filed on the public inspection docket and thereafter
published in the Federal Register.
In 2019 the DoL issued a proposed rule to amend its 2010
regulations implementing the H-2A visa program, which
allows employers temporarily to employ foreigners for
agricultural work. Temporary Agricultural Employment of H-
2A Nonimmigrants in the United States, 84 Fed. Reg. 36168,
36168/3 (proposed July 26, 2019) (to be codified at 20 C.F.R.
pts. 653 and 655). The DoL received more than 83,000
comments, including one from the petitioner, National Council
of Agricultural Employers (NCAE).
On January 11, 2021, nine days before Joe Biden became
president, the DoL transmitted what it characterized as its final
rule to the OFR for publication. The DoL requested
“emergency publication” and asked that the “rule be made
available for immediate filing [for public inspection] on
January 14, 2021, with an emergency publication [in the
Federal Register] on January 15, 2021.” On January 14 the DoL
asked the OFR for a status update and requested that the rule
be published on or before January 19. The OFR responded the
same day and explained that it could not publish the rule by
January 19 given the “relentless backlog of regulatory
documents” that had been submitted to the agency in the days
leading up to the presidential transition.
Rulemaking Timeline

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On January 15, the DoL posted a press release to its
website in which it “announced a final rule that modernizes the
H-2A Temporary Agricultural Labor Certification Program.”
The agency also held a telephonic “stakeholder briefing”
regarding what it characterized as a “significant rulemaking on
the H-2A Visa Program.” The press release included a link to
the rule and said that the DoL was “issuing this final rule in
response to the extensive public comments received.” It
explained the DoL would “publish the final rule in the Federal
Register at a later date” and invited the public to “[r]ead the
final rule.” Each page of the posted rule included the following
disclaimer:
This regulation has been submitted to the Office of the
Federal Register (OFR) for publication, and is
currently pending placement on public inspection at
the OFR and publication in the Federal Register. This
version of the regulation may vary slightly from the
published document if minor technical or formatting
changes are made during the OFR review process.
Only the version published in the Federal Register is
the official regulation.
The “date” field of the rule read: “This final rule is effective,”
after which the DoL entered in brackets “30 DAYS AFTER
DATE OF PUBLICATION IN THE FEDERAL REGISTER.”
That same day, the President and CEO of the NCAE
forwarded to his attorney an email from an executive at another
trade association, saying “the long-expected H-2A program
rule is queued up for publication in the Federal Register.” The
author of the email explained the rule had a “30-day effective
date” and was “[l]ikely to be caught up in the incoming
administration’s 60-day regulatory freeze,” and he deemed it

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“[h]ighly questionable” whether the rule would ever come into
force.
On January 20, President Biden was sworn into office and
the DoL promptly withdrew the rule, which was still in the
OFR’s processing period. Nearly two years later, the DoL
published another rule in the Federal Register based upon the
2019 notice-and-comment procedure. See Temporary
Agricultural Employment of H-2A Nonimmigrants in the
United States, 87 Fed. Reg. 61660, 61664/1-3 (2022). It is
undisputed that both the 2021 and the 2022 rules were logical
outgrowths of the 2019 proposed rule. See Earthworks v. DOI,
105 F.4th 449, 461 (D.C. Cir. 2024) (“Under the APA, an
agency must provide an opportunity for notice and comment if
a final rule is not a ‘logical outgrowth’ of a proposed rule,
because in that case notice of the proposed rule will have given
the public no occasion to comment on what emerged as the
final rule”).
C. Procedural History
The NCAE challenged the withdrawal of the 2021 Rule
and promulgation of the 2022 Rule arguing, among other
things, that the 2021 Rule was “duly issued” and thereafter
“unlawfully repealed.” It also asked the district court
preliminarily to enjoin the 2022 Rule.
As an initial matter, the court concluded that the NCAE
lacked standing to challenge the withdrawal of the 2021 Rule,
which had imposed increased surety bond requirements upon
the NCAE’s members, because avoiding the increase made its
members better off. The court then determined the NCAE had
standing to challenge the validity of the 2022 Rule, at least with
respect to its surety bond provisions, but denied the NCAE’s
request for a preliminary injunction.

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The district court later granted the DoL’s cross-motion for
summary judgment. The court explained that the NCAE’s
claim regarding the validity of the 2022 Rule turned upon
whether the 2021 Rule represented “the culmination of the
rulemaking process.” It then determined that because the “OFR
[had] never made the 2021 Rule available for public
inspection” before the DoL withdrew it, the rule had not
become final. The NCAE now appeals the district court’s
decision solely with regard to the validity of the 2022 Rule.
II. Discussion
We begin by considering whether we have jurisdiction to
hear this case consistent with Article III of the Constitution of
the United States and then proceed to the merits. The issues
being purely legal, we review them de novo. Defs. of Wildlife
v. Perciasepe, 714 F.3d 1317, 1323 (D.C. Cir. 2013)
(standing); Winston & Strawn, LLP v. McLean, 843 F.3d 503,
506 (D.C. Cir. 2016) (summary judgment).
A. Standing
The DoL does not dispute that the NCAE has standing to
challenge at least the surety bond requirements of the 2022
Rule. We have an independent duty, however, to assure
ourselves that this case satisfies the requirements of Article III.
TikTok Inc. v. Garland, 122 F.4th 930, 947 (D.C. Cir. 2024).
To establish its standing, a plaintiff must show it “has
suffered a personal injury fairly traceable to the defendant’s
allegedly unlawful conduct and likely to be redressed by the
requested relief.” Chenoweth v. Clinton, 181 F.3d 112, 113
(D.C. Cir. 1999) (cleaned up). As an association, the NCAE
must establish that “(1) at least one of its members would have
standing to sue in [its] own right, (2) the interests the
association seeks to protect are germane to its purpose, and

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(3) neither the claim asserted nor the relief requested requires
that an individual member of the association participate in the
lawsuit.” Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir.
2002). Here the NCAE advances a procedural theory of injury
— that it was deprived “of its bedrock procedural right [under
the APA] to comment” on the 2022 Rule. “When plaintiffs
challenge an action taken without required procedural
safeguards, they must establish the agency action threatens
their concrete interest.” Mendoza v. Perez, 754 F.3d 1002,
1010 (D.C. Cir. 2014). That is, the NCAE must demonstrate
that its members have more than “a mere general interest in the
alleged procedural violation common to all members of the
public.” Id. (quotation omitted). It must show that their
concrete interest was “adversely affected by the procedural
deprivation.” WildEarth Guardians v. Jewell, 738 F.3d 298,
305 (D.C. Cir. 2013).
If the plaintiff can make this threshold showing, then we
relax “the normal standards for immediacy and redressability,”
Mendoza, 754 F.3d at 1010, but still require it to “show that the
agency action was the cause of some redressable injury to the
plaintiff,” Renal Physicians Ass’n v. HHS, 489 F.3d 1267, 1279
(D.C. Cir. 2007). In short, if the NCAE “can demonstrate a
causal relationship between the final agency action and the
alleged injuries [to its members], [then we] will assume the
causal relationship between the procedural defect and the final
agency action.” Mendoza, 754 F.3d at 1010 (cleaned up).
Here the concrete interest of the NCAE’s members in the
2022 Rule is readily apparent. The NCAE represents approxi-
mately 80% of U.S. farm and ranch employers, as well as
roughly 85% of the farm and ranch families who use the H-2A
visa program. Its representation focuses “exclusively on
agricultural labor issues from the employer’s viewpoint, to
include the H-2A [p]rogram.” The 2022 Rule, for its part,

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imposes requirements upon agricultural employers who
participate in the H-2A program. As the preamble to the 2022
Rule put it: The “issues addressed” by the rule include
modifications to the “standards and conditions of employment
that employers must offer to workers.” 87 Fed. Reg. at
61660/1. Moreover, as the district court explained, the NCAE
submitted declarations quantifying the increased financial
costs of surety bonds, as compared with the status quo (i.e., the
2010 Rule), that the 2022 Rule imposed upon specific NCAE
members.
Our conclusion is no different even if we evaluate the
NCAE’s injury relative to the 2021 Rule rather than to the 2010
Rule. Although both the 2021 and 2022 rules increased the
surety bond requirements for employers as compared to the
2010 Rule, the 2021 Rule alone reduced the surety bond
requirement for businesses seeking to hire fewer than ten H-2A
workers. And there were other aspects of the 2022 Rule the
NCAE argued before the district court further disfavored its
members relative to the 2021 Rule. See, e.g., Mem. in Opp’n to
Defs.’ Cross-Mot. for Summ. J. at 5–6, No. 1:22-cv-03569
(D.D.C. Sept. 14, 2023), ECF No. 31. We therefore conclude
that the NCAE sufficiently demonstrated that one or more of
its members would have standing to bring this case.
We likewise conclude that, in challenging the 2022 Rule,
the NCAE seeks to protect interests that are germane to its
purpose, and that an individual member of the NCAE need not
participate in this case. See GrassRoots Recycling Network,
Inc. v. EPA, 429 F.3d 1109, 1111 (D.C. Cir. 2005). Having
assured ourselves that we have jurisdiction to hear this appeal,
we turn to its merits.

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B. Merits
The NCAE’s sole argument is that the 2022 rule is invalid
because the DoL issued it without first affording notice and an
opportunity for public comment, in violation of the APA. The
NCAE’s theory is that the 2021 Rule “was finalized by [the
DoL] via its own widespread publication at the end of the first
Trump Administration,” Reply Br. 1, so that it could not be
withdrawn or replaced absent a new round of notice and
comment.
As detailed below, the problem with the NCAE’s
argument is that the DoL withdrew the 2021 Rule while it was
still in the OFR’s processing period, before it was made
available for public inspection. Although an agency can, in
certain situations, make a rule effective prior to review by the
OFR, see 5 U.S.C. § 553(d), the DoL did not do so here.
1. A Rulemaking Ordinarily Concludes with Public
Inspection.
The NCAE’s argument that the 2022 Rule required notice
and comment depends upon whether the 2021 Rule became
final during processing by the OFR. It did not.
Recall that a “rule” is “an agency statement of general or
particular applicability and future effect designed to
implement, interpret, or prescribe law.” 5 U.S.C. § 551(4). In
other words, it is “a statement prescribing law with future
effect.” Humane Soc’y, 41 F.4th at 569. A “final rule is
prescribed when it is established authoritatively.” GPA
Midstream, 67 F.4th at 1195 (cleaned up); see Prescribe,
Black’s Law Dictionary (12th ed. 2024) (“To dictate, ordain,
or direct; to establish authoritatively (as a rule or guideline)”).
That occurs when the rule “is duly fixed and so becomes
binding on the public, ‘even if it sets a future effective date.’”

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GPA Midstream, 67 F.4th at 1195 (quoting Humane Soc’y,
41 F.4th at 571). At that point, notice and comment are required
to modify or repeal the rule. Humane Soc’y, 41 F.4th at 565.
Public inspection ordinarily denotes the time when a rule
is authoritatively established. Prior to public inspection, a rule
can be “withdrawn [by the agency] without explanation or
notice,” and a “rule that is unenforceable and may be
withdrawn at will is not duly fixed.” GPA Midstream, 67 F.4th
at 1195 (cleaned up). Indeed, this court has repeatedly
identified public inspection as the critical moment in the
rulemaking process. See, e.g., Humane Soc’y, 41 F.4th at 570
(describing public inspection as “the critical date” that marks
the validity of a rule as to the general public); Nat’l Ass’n of
Mfrs. v. NLRB, 717 F.3d 947, 953–54 & n.5 (2013) (concluding
public inspection was the point at which the agency “had taken
all the steps necessary to issue the rule” and therefore
established “the time for testing [its] validity”); GPA
Midstream, 67 F.4th at 1195 (holding public inspection marked
the earliest possible date a rule was prescribed); Liquid Energy
Pipeline Ass’n v. FERC, 109 F.4th 543, 548 (2024) (explaining
“the APA generally requires the agency to afford notice-and-
comment procedures before amending [a] rule” after it has
become “‘valid’ against the public at large” (quoting Humane
Soc’y, 41 F.4th at 570)).
To be sure, as we have said, an agency can make some
rules effective prior to processing by the OFR, and hence prior
to public inspection. See Humane Soc’y, 41 F.4th at 572
(explaining that there are situations in which a rule can “take
effect immediately”). Specifically, the APA allows an agency
to make a rule effective prior to publication — and therefore
prior to processing by the OFR — for “good cause” and for
interpretive and certain other types of rules. 5 U.S.C. § 553(d)
(providing exceptions to the requirement that a rule be

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published or served 30 days before its effective date); Humane
Soc’y, 41 F.4th at 572–73 (making a similar observation); id.
at 582 (Rao, J., dissenting) (explaining these exceptions “do
not apply to the mine run of regulations”). In those situations,
a rule that is unpublished (FOIA) or unavailable for public
inspection (FRA) is nevertheless effective as against a person
with “actual” knowledge of it. 44 U.S.C. § 1507 (FRA);
5 U.S.C. § 552(a) (FOIA); see Humane Soc’y, 41 F.4th at 570–
71 (making a similar observation). That is, in the rare case that
an agency finalizes and places a rule into effect to enforce it
prior to publication, it has “established authoritatively” and
“duly fixed” the rule. See 5 U.S.C. § 551(4) (defining “rule” to
include “an agency statement” that “prescribe[s] law”);
Humane Soc’y, 41 F.4th at 571 (rejecting the government’s
“claimed powers to enforce unpublished rules and to withdraw
those rules without abiding the APA’s procedural require-
ments”).
For most rules, however, processing by the OFR is the
final step in the rulemaking process before the rule is officially
released to the public. During the processing period, the OFR
reviews documents for compliance with its requirements,
works with the submitting agency to resolve issues, and
reserves the right not to publish a document that does not meet
“minimum requirements.” 1 C.F.R. § 2.4(b). In this way the
OFR plays a critical role in finalizing regulations for official
release. Indeed, as the DoL acknowledged in its public
disclaimer regarding the 2021 Rule, “Only the version [of the
rule] published in the Federal Register [after processing by the
OFR] is the official regulation.” Or as the DoL later described
its submission of the 2021 Rule to the OFR, “On January 11,
2021, [the DoL] transmitted to the [OFR] a draft of an
unpublished draft final rule.” Temporary Agricultural
Employment of H–2A Nonimmigrants Ratification, 90 Fed.
Reg. 2610, 2610 n.1 (2025). The approach taken by the DoL

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here is standard fare for rules subject to mandatory publication
in the Federal Register. By sequencing official release in this
way, an agency ensures that no conflict will arise between the
final rule and an earlier version that predates OFR processing.
In fact, for many rules the effective date is itself
determined by the OFR during processing. Cf. Nat. Res. Def.
Council, Inc. v. EPA, 683 F.2d 752, 762 (3d Cir. 1982)
(explaining the effective date “is an essential part of any rule”).
That is because the OFR will “calculate and insert dates tied to
Federal Register publication,” Handbook § 2.4, and the OFR
sets the date of publication during confidential processing,
1 C.F.R. § 17.2(a). For example, here the 2021 Rule was to
become effective 30 days after publication — indicated by a
placeholder for the OFR to update upon setting the publication
date.
Although a placeholder can ensure a rule will be published
at least 30 days before its effective date, as ordinarily required
by the APA, see 5 U.S.C. § 553(d), doing so makes the
effective date of the rule contingent upon how long the OFR
takes to process it, see OFR FAQs (explaining the OFR
processes documents “on a first-in, first-out system, as much
as possible, but the time it takes to get to and process [an
agency’s] document depends on a number of factors”). The
arguments in this case illustrate the situation.
The NCAE contends the DoL violated its own regulation
by not filing the 2021 Rule for public inspection according to
its regular schedule and therefore “acted arbitrarily and
capriciously.” See 1 C.F.R. §§ 17.2(b)–(c). According to the
NCAE, “there would likely not be a dispute” had the DoL
simply followed its regulations. The DoL counters that the
regulations allow it to defer publication if “[t]here are technical
problems, unusual or lengthy tables, or illustrations, or the

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document is of such size as to require extraordinary processing
time.” Id. § 17.7(a); see Kennecott, 88 F.3d at 1205
(recognizing that the regulations contemplate the possibility of
a delayed schedule when “a document is unusually long”). The
DoL further observes that its drafting handbook informs
agencies that “a document of 100 double-spaced pages or more
requires additional time,” Handbook § 8.8, and the 2021 Rule
was 722 pages long. In other words, the OFR considers the
2021 Rule to be in the heartland of its discretion with respect
to the timing of publication.
We do not resolve this dispute because the NCAE waived
any challenge to the 2021 Rule. Reply Br. 3 (explaining that
the NCAE challenges only “the procedural defects of the 2022
Final Rule”).2 For present purposes, the point is that prior to
public inspection disagreements can arise during OFR
processing that determine when — and sometimes whether —
a rule will go into effect. See 1 C.F.R. § 2.4(b) (giving the
Director of the OFR authority to return to the agency any
document that “does not meet the minimum requirements of
[the OFR’s regulations]”).
At bottom, public inspection marks the point at which all
uncertainty regarding the substance of a rule evaporates. At that
moment the OFR’s review of the rule is complete and all
concerns that arose in that review have been resolved with the
agency; the rule has a set publication date; and a final version
of the rule is posted to the public inspection docket and thereby
becomes valid as to the public at large. We therefore hold that
2 For the same reason, we do not address the NCAE’s assertion that
the OFR’s confidential processing period is contrary to the provision
in the FRA requiring that a document be made available for public
inspection “immediately” upon filing. 44 U.S.C. § 1503.

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public inspection presumptively marks the consummation of
the rulemaking process.
2. The 2021 Rule Remained Unfixed and Non-
Binding.
The NCAE argues that the DoL nevertheless fixed the
2021 Rule in place when it announced the rule and posted a
copy on its website. This argument stumbles out of the gate
because the posted rule was, on its face, subject to OFR
processing. Not only did it include a placeholder for the
effective date — to be set by the OFR — it also featured a
prominent disclaimer notifying the public that the rule was
unofficial. The disclaimer explained the rule might “vary
slightly from the published document” and “[o]nly the version
published in the Federal Register is the official regulation.”
The NCAE understandably emphasizes that the disclaimer
mentioned solely “minor technical or formatting changes.”
True enough. Even so, the agency did not disclaim its right to
make more significant changes. As we explained in Kennecott,
the OFR’s regulations allow an agency “to correct mistakes and
even to withdraw regulations until virtually the last minute
before public release.” 88 F.3d at 1206. Nothing in the
disclaimer to the 2021 Rule suggested the DoL was foregoing
its right to do so.
In fact, nothing about the disclaimer was unusual in any
respect. The DoL and other agencies routinely use similar
disclaimers when they post as yet unpublished rules to their
websites.3 These disclaimers make clear that the posted
3 See, e.g., DoL, Emp’t and Training Admin., RIN 1205-AB89,
Adverse Effect Wage Rate Methodology for the Temporary
Employment of H-2A Nonimmigrants in Non-Range Occupations in

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document is unofficial, and that the official rule will be
published later in the Federal Register. That the 2021 Rule
contained a boilerplate disclaimer reinforces our view that it
was non-final during confidential processing by the OFR. In
sum, the DoL did nothing to differentiate this rule from the
mine run of rules preliminarily posted by agencies, including
the DoL itself — with no expectation of prepublication
enforcement — pending official release by the OFR.
The NCAE invokes cases involving individuals with
actual notice of unpublished rules to buttress its position that
the 2021 Rule was final and enforceable. Each arose under
circumstances quite different from this case, however, and they
only underscore why the 2021 Rule was not final. For example,
the cases affirming criminal convictions involved violations of
unpublished regulations in effect at the time the offense was
committed. See United States v. Aarons, 310 F.2d 341, 342–43
(2d Cir. 1962) (Coast Guard notice closing the Thames River
to accommodate the launch of a “nuclear powered
submarine”); United States v. Ventura-Melendez, 321 F.3d
230, 233 (1st Cir. 2003) (creating a “temporary security zone
. . . adjacent to a bombing range at a military installation”);
United States v. Mowat, 582 F.2d 1194, 1198, 1201–03 (9th
Cir. 1978) (restricting entry to an island “used as a target area
for bombing and gunnery practice” (cleaned up)); United States
the United States, https://perma.cc/RE9V-BBAB (same in related
rule); HHS, Ctrs. for Medicare & Medicaid Servs., RIN 0938-AT65,
Adoption of the Methodology for the HHS-operated Permanent Risk
Adjustment Program under the Patient Protection and Affordable
Care Act for the 2017 Benefit Year, https://perma.cc/R8E8-MX8Y
(similar); Dep’t of Treasury, Off. of Inv. Sec., RIN 1505-AC88,
Definition of Military Installation and the List of Military
Installations in the Regulations Pertaining to Certain Transactions by
Foreign Persons Involving Real Estate in the United States,
https://perma.cc/6YYX-TYVF (similar).

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v. Bowers, 920 F.2d 220, 222–23 (4th Cir. 1990) (involving
unpublished tax forms that were in use and “known to over two
hundred million Americans”). These cases did not involve the
finality of a rule pending before the OFR with an effective date
conditioned upon publication. A similar point applies to the
non-criminal case cited by the NCAE and discussed in Humane
Society. See Arlington Oil Mills, Inc. v. Knebel, 543 F.2d 1092,
1098–99 (5th Cir. 1976) (involving announcement of an
agricultural price support issued by the Department of
Agriculture in March 1976 “for the 1976 crop year” that went
unpublished in the Federal Register); Humane Soc’y, 41 F.4th
at 574. There, members of the regulated public “made numer-
ous inquiries as to the status of the [price support]
announcement,” and agency officials gave “repeated assur-
ances that the . . . announcement would remain in force.”
Arlington Oil Mills, 543 F.2d at 1099. Here the 2021 Rule was
never “in force” as to any person, with or without actual notice,
nor could it have been until after OFR processing. For by its
own terms the 2021 Rule would become effective only after
publication in the Federal Register, and there was to be just one
“official regulation” — “the version published in the Federal
Register.”
The other cases upon which the NCAE principally relies
are likewise inapposite. Two involved the timeliness of a
petition under statutory review provisions conditioning the
availability of judicial review. See Indus. Union Dep’t v.
Bingham, 570 F.2d 965, 970–71 (D.C. Cir. 1977) (Leventhal,
J., concurring) (judicial review provision of the Occupational
Safety and Health Act); Saturn Airways, Inc. v. Civ.
Aeronautics Bd., 476 F.2d 907, 908–09 (D.C. Cir. 1973)
(timeliness of challenge to regulations of the Civil Aeronautics
Board). The third construed the word “promulgation” in a
“record cut-off provision” of the Clean Air Act that promoted
“effective judicial review.” Am. Petroleum Inst. v. Costle, 609

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23
F.2d 20, 22–24 (D.C. Cir. 1979). In Humane Society, however,
we questioned the persuasive force of cases such as these,
which deal with the meaning of terms “in particular statutory
review provisions, a question unrelated to when notice-and-
comment requirements attach.” 41 F.4th at 574. But see id. at
578–79 (Rao, J., dissenting) (discussing cases that use publica-
tion in the Federal Register to mark the promulgation of a rule
by an agency for purposes of judicial review).
To the extent cases analyzing the timeliness of a petition
for review are relevant here, the most apposite authority favors
using public inspection to denote finality. In GPA Midstream
we considered the timeliness of a petition for review of safety
standards. 67 F.4th at 1195. There, as here, our task was to
determine when the rule was “prescribed.” See id. (explaining
the relevant judicial review provision required a petition be
filed “not later than 89 days after the regulation is prescribed”
(quoting 49 U.S.C. § 60119(a)(1)). There, as here, while the
rule was being processed by the OFR the agency had posted on
its website an unofficial version of the rule with the usual
disclaimer. See PHMSA Final Rule: Pipeline Valve Installation
and Rupture Detection Standards — Federal Register
Submission, Dep’t of Transp. (Mar. 31, 2022),
https://perma.cc/KVU6-ED99?type=image. There, as here, the
effective date of the rule was keyed to publication in the
Federal Register. See Suppl. Br. of Pet’rs, GPA Midstream,
Ass’n v. Dep’t of Transp., No. 22-1148, at B–2 (D.C. Cir. Feb.
21, 2023) (unofficial rule). Invoking Humane Society, we
concluded public inspection marked the point at which the rule
was officially “prescribed” (or “duly fixed”) and therefore
found the petition timely. 67 F.4th at 1195. In other words, we
recognized that public inspection marked the earliest point at
which the rule could be deemed final. See id. (explaining we
had “no occasion to decide whether the filing clock started

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running only after the rule was first published in the Federal
Register”).
At points in its briefs, the NCAE contends the 2021 Rule
was final when announced because it satisfied the standard for
“final agency action” in a judicial review provision of the APA.
See 5 U.S.C. § 704. Two conditions “generally must be
satisfied” under that standard: “First, the action must mark the
consummation of the agency’s decisionmaking process — it
must not be of a merely tentative or interlocutory nature. And
second, the action must be one by which rights or obligations
have been determined, or from which legal consequences will
flow.” U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590,
597 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 177–78
(1997)).
As the district court recognized, however, our decision in
Humane Society did not rely upon § 704 to determine the
finality of the rule at issue there. Instead, we held public
inspection marked finality based upon an objective source —
the text of the FRA. Humane Soc’y, 41 F.4th at 570 (explaining
“the critical date” under the FRA is when “a rule is filed for
public inspection . . . [and] becomes ‘valid’ against the public
at large” (quoting 44 U.S.C. § 1507)). Finality for the purpose
of judicial review, by contrast, entails a “pragmatic” and
“flexible” inquiry that “lacks many self-implementing, bright-
line rules” and “is hardly crisp.” Rhea Lana, Inc. v. DoL, 824
F.3d 1023, 1027 (D.C. Cir. 2016) (cleaned up).
It bears particular emphasis that public inspection being
the brightline marker of when a rule is authoritatively
established comes with considerable practical advantages. It
provides regulated entities with certainty, and it gives agencies
a clear understanding of the procedural requirements they must
satisfy under the APA. It also ensures changes can be made to

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rules during processing by the OFR — so long as they meet the
“logical outgrowth” requirement — without the burden of
another round of notice and comment. See Kennecott, 88 F.3d
at 1206 (explaining the ability of “agencies to correct mistakes
and even to withdraw regulations until virtually the last minute
before public release . . . helps assure that regulations appear-
ing in the Federal Register are as correct as possible in both
form and substance”).
The NCAE’s view that once an agency releases a rule to
the public “it is instantly final,” Reply Br. 23, does not offer
comparable clarity. On the contrary, it raises the question, what
precisely constitutes release to the public if not official public
inspection. Here the agency conducted a “stakeholder briefing”
and posted an unofficial version of the rule to its website with
caveats. What if it had done one but not the other? Does it
matter how many people joined the stakeholder call or the level
of traffic on the agency website? Is the precise wording of the
disclaimer controlling? What if none of the above occurred but
an agency official “tweeted” about the rule? (The NCAE
indicated to the district court that a tweet could render a rule
final, Mem. in Opp’n to Defs.’ Cross-Mot. for Summ. J. at 15).
Does it matter how members of the public subjectively react to
the announcement? Or, in this case, that the President and CEO
of the NCAE may have found it “questionable” whether the
rule would come into force given the presidential transition and
“the incoming administration’s 60-day regulatory freeze”?
The applicable statutory and regulatory scheme does not
require or even tolerate a subjective analysis when determining
the finality of a substantive rule. It instead sets forth an orderly
process by which substantive rules are finalized and officially
made available to the public when the OFR files them for
public inspection. Because the 2021 Rule was a substantive
rule that was not filed on the public inspection docket, it was

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not final for purposes of the notice-and-comment requirements
of the APA.
III. Conclusion
For the reasons stated, the judgment of the district court is,
therefore,
Affirmed.

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