A recent decision by a split three-judge panel of the influential U.S. Court of Appeals for the D.C. Circuit has potentially significant implications for federal rulemaking subject to the Administrative Procedure Act (APA), and in particular during the transition of presidential administrations from one political party to the other.
Ruling in the case of Humane Society v. Department of Agriculture, No. 20-5291 (D.C. Cir. July 22, 2022), the appeals court found that a federal agency cannot withdraw an unpublished final rule without first adhering to the APA’s notice and comment requirements, assuming the rule has been made available for official “public inspection” before publication in the Federal Register.
As a practical matter, the decision means that it will be more difficult for an incoming administration to quickly dispose of unwanted eleventh-hour regulatory actions taken by its predecessor.
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