Labor & Employment Law Daily Wrap Up, PROCEDURE—D.C. Cir.: Public inspection marks the consummation of the rulemaking process, (Jul 14, 2025)

By Todd Harrison, J.D.

A 2021 rule that was not filed on the public inspection docket was not final for purposes of the notice and comment requirements of the APA.

Affirming a district court’s finding that a substantive rule is not ordinarily final until the Office of the Federal Register (OFR) makes it available for public inspection, the D.C. Circuit found that at that juncture the rule is “duly fixed” and becomes valid against the public at large. In 2019 the Department of Labor (DOL) issued a notice of proposed rulemaking to amend its 2010 regulations regarding a visa program. During the final days of the Trump administration in 2021, the DOL announced to the public and submitted to the OFR for publication what it characterized as a final rule. However, while the OFR was processing the rule, the DOL under President Biden withdrew it, and subsequently issued a new rule in 2022 based upon the 2019 notice (National Council of Agricultural Employers v. United States Department of Labor , No. 24-5072 (D.C. Cir. July 11, 2025)).

In 2019, the DOL began a rulemaking to revise a nonimmigrant visa program and submitted a “final rule” to the OFR for publication in 2021. It then withdrew the 2021 rule during the OFR’s confidential processing period, and in 2022 submitted a new “final rule,” which was subsequently filed on the public inspection docket and thereafter published in the Federal Register.

Lawsuit. The National Council of Agricultural Employers (NCAE) challenged the withdrawal of the 2021 rule and promulgation of the 2022 rule, arguing that the 2021 rule was “duly issued” and thereafter “unlawfully repealed.” It asked the district court to preliminarily enjoin the 2022 rule.

As an initial matter, the district court concluded that the NCAE lacked standing to challenge the withdrawal of the 2021 rule, which had increased surety bond requirements upon NCAE’s members, because avoiding the increase had made its members better off. The court then determined that the NCAE had standing to challenge the validity of the 2022 rule, at least with respect to the surety bond provisions, but denied the request for a preliminary injunction.

Subsequently, the district court granted the DOL’s motion for summary judgment, explaining that the NCAE’s claim regarding the validity of the 2022 rule turned on 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. This appeal followed.

Public inspection. The NCAE’s argument that the 2022 rule required notice and comment depends on whether the 2021 rule became final during processing by the OFR, explained the court, and public inspection ordinarily denotes the time when a rule is authoritatively established. However, an agency can make some rules effective prior to processing by the OFR. Specifically, the APA allows an agency to make a rule effective prior to publication for “good cause” and for interpretative and certain other types of rules. Regardless, for most rules processing by the OFR is the final step in the rulemaking process before the rule is officially released to the public.

Effective date. For many rules, the effective date is itself determined by the OFR during processing. In this case, the 2021 rule was to become effective 30 days after publication as 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, doing so makes the effective date of the rule contingent upon how long the OFR takes to process it.

According to the NCAE, the DOL violated its own regulation by not filing the 2021 rule for public inspection according to its regular schedule and had therefore acted “arbitrarily and capriciously.” In response, the DOL contended that the regulations allow it to defer publication if “[t]here are technical problems, unusual or lengthy tables, or illustrations, or the document is of such size as to require extraordinary processing time.” The 2021 rule was 722 pages long.

Ultimately, the court declined to resolve this dispute because the NCAE waived any challenge to the 2021 rule. However, it highlighted the point that prior to public inspection disagreements can arise during OFR processing that determine when—and sometimes whether—a rule will go into effect.

Uncertainty resolved. “At bottom, public inspection marks the point at which all uncertainty regarding the substance of a rule evaporates,” said the court. At that moment, continued the court, the OFR’s review of the rule is complete and all concerns that arose in that review have been resolved with the agency. As such, “public inspection presumptively marks the consummation of the rulemaking process.”

Disclaimer. Nevertheless, the NCAE argued that the DOL fixed the 2021 rule in place when it announced the rule and posted a copy on its website. The court was not moved, finding that this argument was a nonstarter 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,” said the court. The disclaimer went on to explain that the rule might “vary slightly from the published document” and “[o]nly the version published in the Federal Register is the official regulation.”

Although the NCAE emphasized that the disclaimer mentioned solely “minor technical or formatting changes,” the court explained that the agency did not disclaim its right to make more significant changes.

“That the 2021 Rule contained a boilerplate disclaimer reinforces our view that it was non-final during confidential processing by the OFR,” said the court.

Practical advantages. Repeating its stance that public inspection is the “brightline marker” of when a rule is authoritatively established, the court explained that such a holding comes with significant practical advantages. Regulated entities are provided with certainty and agencies are given a clear understanding of the procedural requirements they must satisfy under the APA. It also ensures changes can be made to rules during processing by the OFR without the burden of another round of notice and comment.

“The NCAE’s view that once an agency releases a rule to the public “it is instantly final” does not offer comparable clarity,” said the court.

The applicable statutory and regulatory scheme 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, explained the court. Because the 2021 rule was a substantive rule that was not filed on the public inspection docket, it was not final for purposes of the notice and comment requirements of the APA, concluded the court. Accordingly, the judgment of the district court was affirmed.

The case is No. 24-5072.

Judge: Ginsburg, D.

Attorneys: David R. Dorey (Liff, Walsh & Simmons) for National Council of Agricultural Employers. Charles Wylie Scarborough, U.S. Department of Justice, for U.S. Department of Labor.

Companies: National Council of Agricultural Employers

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