`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Decided July 22, 2022
`
`Argued April 20, 2022
`
`
`No. 20-5291
`
`HUMANE SOCIETY OF THE UNITED STATES, ET AL.,
`APPELLANTS
`
`v.
`
`UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,
`APPELLEES
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:19-cv-02458)
`
`
`
`
`
`Caroline A. Flynn argued the cause for appellants. With
`her on the briefs were Ralph E. Henry, L. Allison Herzog,
`Roman Martinez, and Julia A. Hatcher.
`
`
`H. Thomas Byron III, 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, and Sushma Soni, Attorney.
`
`
`Before: TATEL∗, MILLETT, and RAO, Circuit Judges.
`
`∗ Judge Tatel assumed senior status after this case was argued and
`before the date of this opinion.
`
`
`
`

`

`2
`Opinion for the Court filed by Circuit Judge TATEL.
`
`
`
`Dissenting opinion by Circuit Judge RAO.
`
`
`TATEL, Circuit Judge: At the culmination of a five-month
`rulemaking, the Department of Agriculture announced a final
`rule designed to protect show horses from abuse. As required
`by the Federal Register Act, the agency transmitted the signed
`rule to the Office of the Federal Register, which made it
`available for public inspection. But on the day President Trump
`took the oath of office, his Chief of Staff directed executive
`agencies to withdraw all pending rules. The question in this
`case is whether an agency must provide notice and an
`opportunity for comment when withdrawing a rule that has
`been filed for public inspection but not yet published in the
`Federal Register. We hold that it must.
`
`I.
`
`The rule at issue in this case marks the latest effort in a
`
`fifty-year campaign to end the “soring” of show horses. To sore
`a horse means to cut, burn, or otherwise inflict pain on its legs
`to alter its natural gait. This form of abuse became a common
`method to “create[] artificially” the “distinctive ‘walk’” of
`Tennessee walking horses popular in exhibitions without
`laborious and expensive training. H.R. Rep. No. 91-1597, at 2
`(1970).
`
`In 1970, Congress enacted the Horse Protection Act to bar
`the showing or sale of any horse subjected to a “cruel or
`inhumane method or device” “for the purpose of affecting its
`gait.” Pub. L. No. 91-540, § 2, 84 Stat. 1404. The statute sought
`both to ensure humane treatment of horses and to prevent
`unscrupulous trainers from “compet[ing] unfairly” with those
`who opted to train their horses rather than torment them.
`
`
`
`

`

`3
`Id. § 3. It directed the Secretary of Agriculture to conduct
`inspections as necessary to enforce these prohibitions. Id. § 5.
`
`The 1970 Act did little to abate mistreatment. In particular,
`
`the “limited resources available to the Department of
`Agriculture” allowed it to inspect horses at only a handful of
`the several thousand exhibitions each year. H.R. Rep. No. 94-
`1174, at 5 (1976).
`
`To bolster the Department’s enforcement capabilities,
`Congress amended the Horse Protection Act in 1976,
`authorizing the agency to issue regulations for the appointment
`of private inspectors at horse exhibitions. Pub L. No. 94-360,
`§ 5, 90 Stat. 915. Exercising this authority, the Department
`established a system of “designated qualified persons”—
`inspectors selected by management to inspect horses at their
`shows. Definition of Terms and Certification and Licensing of
`Designated Qualified Persons, 44 Fed. Reg. 1,558, 1,562–63
`(Jan. 5, 1979). Program regulations permitted horse industry
`organizations, after obtaining agency certification, to license
`designated qualified persons without direct agency training or
`oversight. Id. at 1,563. By appointing a designated qualified
`person to inspect horses at an exhibition, the exhibition’s
`management fulfilled its “responsib[ility] for identifying all
`horses that are sore.” Prohibition Concerning Exhibitors of
`Horses, 44 Fed. Reg. 25,172, 25,182 (Apr. 27, 1979).
`
`Placing horse industry groups in charge of inspections
`
`proved ineffective, and soring continued apace. In 2010, the
`Department of Agriculture’s Office of the Inspector General
`published a report finding that the “current program for
`inspecting show horses for abuse is not adequate to ensure that
`these animals are not being sored.” U.S. Department of
`Agriculture Office of the Inspector General, Audit Report
`33601-2-KC, Animal and Plant Health Inspection Service
`
`
`
`

`

`4
`Administration of the Horse Protection Program and the
`Slaughter Horse Transport Program 10 (Sept. 2010). Because
`designated qualified persons were beholden to “the horse show
`organizers who employ[ed] them,” they had “a direct conflict
`of interest with enforcing the law” and often overlooked
`violations. Id. at 10–11. The OIG report recommended that the
`Department abolish the designated-qualified-person system
`and “establish by
`regulation
`that
`inspectors will be
`independent, USDA-accredited veterinarians.” Id. at 17.
`
`Under increasing pressure following the OIG report, the
`
`Department published notice of a proposed rule under which it
`would assume direct control of inspector licensure and training
`consistent with the report’s recommendations. Licensing of
`Designated Qualified Persons and Other Amendments, 81 Fed.
`Reg. 49,112 (July 26, 2016). The Department held five public
`hearings, extended the rule’s comment period, and ultimately
`received over 130,000 written comments. See 81 Fed. Reg.
`65,307 (Sept. 22, 2016).
`
`On January 11, 2017, the Department posted on its website
`a signed final rule that substantially adhered to its initial
`proposal along with a press release announcing that it had
`“announced a final rule” that “will be publish[ed] in the Federal
`Register in the coming days.” The rule provided that some of
`its provisions would become effective thirty days after
`publication while others would take effect the next year. The
`Department then transmitted the rule to the Office of the
`Federal Register (OFR) for publication. Following the internal
`processing required by OFR regulations, OFR scheduled the
`rule for publication and made it available for public inspection
`on January 19, 2017.
`
`The next day, the newly inaugurated President’s Chief of
`
`Staff issued a memorandum directing all executive agencies to
`
`
`
`

`

`5
`“immediately withdraw” “regulations that have been sent to the
`OFR but not published in the Federal Register.” Regulatory
`Freeze Pending Review, 82 Fed. Reg. 8,346, 8,346 (Jan. 24,
`2017). Pursuant to that directive, the Department withdrew the
`rule from publication and took no further action on the
`rulemaking.
`
`The Humane Society filed suit along with four of its
`
`members challenging the rule’s withdrawal. It principally
`claims that the Department unlawfully repealed the rule
`without notice and comment or the reasoned decisionmaking
`that the Administrative Procedure Act requires. The district
`court dismissed, agreeing with the government that a rule
`becomes final only upon Federal Register publication. Humane
`Society of the United States v. Department of Agriculture, 474
`F. Supp. 3d 320, 330–31 (D.D.C. 2020). The district court also
`rejected the Humane Society’s alternative argument that OFR
`violated its own regulations. Our review is de novo. See Safari
`Club International v. Jewell, 842 F.3d 1280, 1285 (D.C. Cir.
`2016) (reviewing de novo questions of subject matter
`jurisdiction and failure to state a claim).
`
`II.
`
` We can quickly dispense with the government’s argument
`that the Humane Society and its members lack Article III
`standing to challenge the rule’s withdrawal. “As the Supreme
`Court explained in Lujan v. Defenders of Wildlife, to establish
`constitutional standing, plaintiffs must satisfy three elements:
`(1) they must have suffered an injury in fact that is ‘concrete
`and particularized’ and ‘actual or imminent, not conjectural or
`hypothetical’; (2) the injury must be ‘fairly traceable to the
`challenged action of the defendant’; and (3) ‘it must be likely,
`as opposed to merely speculative, that the injury will be
`redressed by a favorable decision.’” NB ex rel. Peacock v.
`
`
`
`

`

`6
`District of Columbia, 682 F.3d 77, 81 (D.C. Cir. 2012) (quoting
`Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).
`An organization asserting standing on its own behalf must meet
`the same standard, demonstrating “‘concrete and demonstrable
`injury to [its] activities[]’” beyond “‘a mere setback to [its]
`abstract social interests.’” PETA v. Department of Agriculture,
`797 F.3d 1087, 1093 (D.C. Cir. 2015) (quoting Equal Rights
`Center v. Post Properties, Inc., 633 F.3d 1136, 1138 (D.C. Cir.
`2011)).
`
`The Humane Society and its members easily surmount this
`bar. Each alleges a concrete, pecuniary injury. In its complaint,
`the Humane Society alleges that, absent a more rigorous
`inspection regime, it must “redirect its limited time and
`resources away from existing horse protection work to identify,
`investigate, publicize and counteract continuing soring
`activities.” See id. at 1094 (organization suffers injury in fact
`when “the agency’s action or omission to act injured the
`organization’s
`interest” and “the organization used
`its
`resources to counteract that harm” (cleaned up)). And the
`Humane Society’s members allege precisely the competitive
`harm Congress sought to eliminate with the Horse Protection
`Act: unable to compete with trainers who sore their horses with
`impunity, the individual plaintiffs have abandoned equestrian
`activities including exhibition and commercial training. See 15
`U.S.C. § 1822 (“The Congress finds and declares that . . .
`horses shown or exhibited which are sore, where such soreness
`improves the performance of such horse, compete unfairly with
`horses which are not sore.”). “We repeatedly have held that
`parties suffer constitutional injury in fact when agencies lift
`regulatory restrictions on their competitors or otherwise allow
`increased competition.” Louisiana Energy & Power
`Authority v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998).
`
`
`
`

`

`7
`To plead traceability, a plaintiff seeking to enforce
`procedural rulemaking requirements must demonstrate only “a
`causal relationship between the final agency action and the
`alleged injuries.” Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C.
`Cir. 2014). The Humane Society and its members have done
`just that by pointing to the OIG report, which found that agency
`licensure of inspectors consistent with the final rule “would
`generally improve [the agency’s] ability to enforce the Horse
`Protection Act.” OIG Report at 3. Facing pecuniary harm from
`the rule’s withdrawal, the Humane Society and its members
`have standing to challenge it.
`
`III.
`
`To foster public participation and facilitate reasoned
`
`decisionmaking, “the Administrative Procedure Act requires
`agencies to afford notice of a proposed rulemaking and an
`opportunity for public comment prior to a rule’s promulgation,
`amendment, modification, or repeal.” American Hospital
`Association v. Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987).
`Providing for notice and comment before repeal of a final rule
`“ensures that an agency will not undo all that it accomplished
`through its rulemaking without giving all parties an opportunity
`to comment on the wisdom of repeal.” Consumer Energy
`Council of America v. FERC, 673 F.2d 425, 446 (D.C. Cir.
`1982).
`
`As the government emphasizes, for the past three decades
`
`incoming presidential administrations have quietly withdrawn
`rules awaiting Federal Register publication without observing
`this procedural requirement. See Regulatory Freeze Pending
`Review, 82 Fed. Reg. 8,346 (Jan. 24, 2017); Regulatory
`Review, 74 Fed. Reg. 4,435 (Jan. 26, 2009); Regulatory
`Review Plan, 66 Fed. Reg. 7,702 (Jan. 24, 2001); Regulatory
`Review, 58 Fed. Reg. 6,074 (Jan. 25, 1993). In some cases,
`
`
`
`

`

`8
`agencies have withdrawn these rules during internal OFR
`processing without ever releasing them to the public; in others,
`as here, they have done so after making the rule available for
`public inspection as a final rule. The government contends, and
`the district court agreed, that only publishing a rule in the
`Federal Register triggers the APA’s requirement to undertake
`notice and comment to repeal it. The Humane Society, for its
`part, contends that the rule here became final when OFR made
`it available for public inspection or even earlier when the
`Department of Agriculture posted it on its website. We must
`decide when a rule passes this regulatory point of no return.
`
`A.
`
` We begin our analysis with the language of the APA.
`Except in limited circumstances not relevant to this case, the
`statute’s rulemaking provision guarantees the public notice and
`an opportunity to participate in agency “rule making.” 5 U.S.C.
`§ 553. The statute defines “rule making” as an “agency process
`for formulating, amending, or repealing a rule.” 5 U.S.C.
`§ 551(5). It in turn defines a “rule” as “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). Thus, once an agency makes a rule—that is, once it
`makes a statement prescribing law with future effect—the APA
`requires the agency to provide notice and an opportunity for
`comment before repealing it.
`
`To assess the government’s claim that only Federal
`
`Register publication creates a rule, we look to the statute that
`governs such publication. Enacted in 1935 and codified in
`1968, the Federal Register Act mandates publication of
`presidential proclamations and agency regulations with general
`applicability and legal effect. Pub. L. No. 74-220, 49 Stat. 500;
`see Act of Oct. 22, 1968, Pub. L. No. 90-620, 82 Stat. 1238. As
`
`
`
`

`

`9
`amended, it requires agencies to transmit to OFR the original
`and copies of any document required to be published in the
`Federal Register. 44 U.S.C. § 1503. Under OFR’s regulations,
`the document is then “held for confidential processing until it
`is filed for public inspection.” 1 C.F.R. § 17.1. Then, OFR must
`make a copy “immediately available for public inspection in
`the Office” and “cause to be noted on the original and duplicate
`originals or certified copies of each document the day and hour
`of filing.” 44 U.S.C. § 1503.
`
`The Federal Register Act also sets forth the legal
`consequences of each step in this process. Making a document
`available for public inspection “is sufficient to give notice of
`the contents of the document to a person subject to or affected
`by it.” 44 U.S.C. § 1507. A document “is not valid as against a
`person who has not had actual knowledge of it until . . . [it is]
`made available for public inspection.” Id. Federal Register
`publication then “creates a rebuttable presumption” that the
`document was “duly issued, prescribed, or promulgated” and
`that it was properly “made available for public inspection at the
`day and hour stated in the printed notation.” Id.
`
`Far from bolstering the government’s position, the Federal
`
`Register Act forecloses its argument that an agency prescribes
`a rule only once the rule is published in the Federal Register.
`The statute repeatedly distinguishes between the publication of
`a document and its issuance, prescription, or promulgation. For
`example, Federal Register publication only “rebuttabl[y]”—
`and not conclusively—establishes that a published document
`was duly prescribed. Id. In its provision governing transmittal
`of agency documents to OFR, the Federal Register Act also
`creates special procedures for when a document “is issued,
`prescribed, or promulgated outside the District of Columbia.”
`44 U.S.C. § 1503. Similarly, the statute defines a “document”
`transmitted by an agency to OFR to include “an order,
`
`
`
`

`

`10
`regulation, [or] rule” that has been “issued, prescribed, or
`promulgated by a[n] . . . agency.” 44 U.S.C. § 1501. In other
`words, the statute contemplates that a rule may be prescribed
`before publication in the Federal Register.
`
`language at oral argument,
`this
`Confronted with
`
`government counsel conceded that “a rule can be issued,
`prescribed, or promulgated without publication in the Federal
`Register or prior to publication in the Federal Register.”
`Recording of Oral Arg. 1:06:28–1:07:21. Given
`this
`concession and the statute’s plain language, it is difficult to see
`what of the government’s statutory argument remains. The
`APA requires notice and comment before “repealing a rule.” 5
`U.S.C. §§ 551(5), 553. If an agency can prescribe a rule
`without publishing it, then publication cannot mark the point at
`which the requirement to undertake notice and comment before
`repeal attaches.
`
`Rather than set the critical date at the date of publication,
`
`the Federal Register Act sets it at the date a rule is filed for
`public inspection. That is the “day and hour” the statute
`requires be noted for posterity. 44 U.S.C. § 1503. It is then that
`a rule becomes “valid” against the public at large. 44 U.S.C.
`§ 1507. And it is filing a document for public inspection, not
`publication in the Federal Register, that the statute deems
`“sufficient to give [constructive] notice” of the document to
`affected parties. Id. Making a rule available for public
`inspection, then, provides notice to the public and carries legal
`consequences. By contrast, publication in the Federal Register
`serves an essentially evidentiary rather than legal function. It
`creates a “rebuttable presumption” that the published document
`is a “true copy” of one already “duly issued, prescribed, or
`promulgated” and that it “was filed with the Office of the
`Federal Register and made available for public inspection at the
`day and hour stated in the printed notation.” Id.
`
`
`
`

`

`11
` Contemporaneous executive-branch opinions support this
`straightforward reading of the statute. An opinion by the
`Attorney General just three months after the Federal Register
`Act’s enactment concluded that regulations are “valid and
`operate as constructive notice . . . as soon as they have been
`filed . . . and made available for public inspection[,] . . . and
`that publication in the Federal Register is not essential to their
`validity.” Questions Arising
`in
`the National Archives
`Establishment Under the Federal Register Act, 38 U.S. Op.
`Att’y Gen. 359, 361 (1935). Indeed, the first regulations
`governing public inspection and publication under the Federal
`Register Act designated some agency documents of general
`applicability and legal effect to be made available for public
`inspection but not published. Federal Register Regulations, 3
`Fed. Reg. 1,209, 1,221 (May 28, 1938) (requiring that
`Securities and Exchange Commission forms “shall be filed . . .
`for public inspection, but only a notation of the fact of filing
`shall be published in the Federal Register”). Several years after
`the statute’s codification, the Office of Legal Counsel, echoing
`the Attorney General’s decision decades before, wrote that
`“under the terms of the statute, it seems clear that filing with
`the Federal Register constitutes promulgation of a regulation
`even though publication may not occur until a later date.”
`Federal Register Act—Date of ‘Promulgation’ of Law
`Enforcement Assistance Administration Regulations, 1 U.S.
`Op. O.L.C. 12 (1977). Although recent administrations have
`taken a different view when doing so served their interests, that
`view is unpersuasive considering the statutory text and history.
`
`The government also relies on the Freedom of Information
`
`Act, which provides that a person may not “be adversely
`affected” by a rule wrongly withheld from publication
`“[e]xcept to the extent that a person has actual and timely notice
`of the terms thereof.” 5 U.S.C. § 552(a). This qualified
`limitation on the government’s enforcement authority has no
`
`
`
`

`

`12
`bearing on the Federal Register Act’s more specific provisions
`that give legal effect to the date a rule is made available for
`public inspection. But in any case, both the Federal Register
`Act and FOIA contemplate prepublication enforcement against
`parties with actual notice, a proposition incompatible with the
`government’s view that an agency prescribes law only by
`Federal Register publication. The government has repeatedly
`(and often successfully) invoked this authority in criminal
`prosecutions for violations of unpublished rules. See, e.g.,
`United States v. Ventura-Melendez, 321 F.3d 230, 233 (1st Cir.
`2003) (affirming criminal conviction on the ground that
`defendant had actual notice of unpublished rule); United
`States v. Bowers, 920 F.2d 220, 222–23 (4th Cir. 1990) (same);
`United States v. Mowat, 582 F.2d 1194, 1201–03 (9th Cir.
`1978) (same); United States v. Aarons, 310 F.2d 341, 348 (2d
`Cir. 1962) (same). The dissent seeks to minimize these cases
`because, in its view, they “involved something other than
`substantive rules.” Dissenting Op. at 13. But the courts
`deciding them characterized the rules at issue as “‘substantive
`rules of general applicability’” for which Federal Register
`publication was required. Mowat, 582 F.2d at 1199 (quoting 5
`U.S.C. § 552(a)(1)(D)); see also Aarons, 310 F.2d at 347
`(“There appears to be no basis for doubting that the Coast
`Guard’s Special Notice is a ‘rule’ within the definition found
`in § 2(c) of the APA . . . .”).
`
`The government sees no contradiction between its claimed
`
`powers to enforce unpublished rules and to withdraw those
`rules without abiding the APA’s procedural requirements.
`Instead, it contends that “the statutes give the agency the
`flexibility to enforce [a] rule[] without waiting for publication
`where (1) the agency treats an unpublished requirement as final
`and enforceable, and in fact attempts to enforce it, and (2) the
`subject of the enforcement action has actual knowledge of the
`unpublished rule.” Appellees’ Br. 48–49. This position—that
`
`
`
`

`

`13
`the enforceability of an unpublished rule turns solely on
`whether the government chooses to enforce it—does not
`comport with even the most impoverished notions of due
`process. Essentially, the government takes the view that a rule
`filed for public inspection and awaiting publication exists in a
`state of superposition like Schrödinger’s cat—simultaneously
`law and not law until the agency publishes or withdraws it.
`
`Nor do we have any trouble rejecting the government’s
`
`argument that we should adopt one standard for immediately
`effective rules and a different standard for rules (like this one)
`with an effective date after publication. Most important, that
`distinction finds no support in the statute. The APA’s definition
`of a rule includes legal prescriptions that carry only “future
`effect.” 5 U.S.C. § 551(4). And under the Federal Register Act,
`making a document available for public inspection “give[s]
`notice of the contents of the document to a person subject to or
`affected by it” regardless of when the document becomes
`effective. 44 U.S.C. § 1507.
`
`The government’s proposed distinction based on a rule’s
`effective date also contravenes our precedent. Like an enacted
`statute, which becomes “valid law” once enacted even if not
`yet “effective,” see United States v. Brundage, 903 F.2d 837,
`843 (D.C. Cir. 1990), a duly prescribed rule is law even if it
`sets a future effective date. And we have repeatedly held that
`“an order delaying [a] rule’s effective date . . . [is] tantamount
`to amending or revoking a rule.” Clean Air Council v. Pruitt,
`862 F.3d 1, 6 (D.C. Cir. 2017) (per curiam); see, e.g.,
`Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802,
`813, 816 (D.C. Cir. 1983) (“a suspension of the effective date
`of regulation . . . may be reviewed in the court of appeals as the
`promulgation of a regulation” and “is normally subject to APA
`rulemaking requirements”); Council of Southern Mountains,
`Inc. v. Donovan, 653 F.2d 573, 582 (D.C. Cir. 1981) (per
`
`
`
`

`

`14
`curiam) (absent good cause an agency must “follow notice and
`comment procedures” to “postpone the implementation date”
`of a rule). Under these precedents, a rule becomes law when
`duly prescribed, not when it goes into effect.
`
`B.
`
`The dissent takes issue with our statutory analysis,
`
`contending that the APA’s rulemaking provisions “strongly
`suggest” that publication marks the point at which an agency
`must undertake notice and comment to repeal a rule. Dissenting
`Op. at 6. Glossing over the APA’s definitions of a “rule” and
`“rule making,” the dissent rests its argument on the statute’s
`requirement that “[t]he required publication or service of a
`substantive rule shall be made not less than 30 days before its
`effective date.” 5 U.S.C. § 553(d). In its view, the Federal
`Register Act is “obsolete,” and this “later, more specific”
`language supersedes it. Dissenting Op. at 5 (first quote); id. at
`11 (second quote).
`
` We disagree. For one, the dissent’s chronology is
`backwards. Although Congress first enacted the Federal
`Register Act in 1935, it codified the statute without substantial
`change in 1968, more than two decades after the APA’s
`enactment and two years after its codification. See Act of
`Oct. 22, 1968, Pub. L. No. 90-620, 82 Stat. 1238 (codifying the
`Federal Register Act); Administrative Procedure Act, Pub. L.
`No. 79-404, 60 Stat. 237 (1946); Act of Sept. 6, 1966, Pub. L.
`No. 89-554, 80 Stat. 378 (codifying the APA). Even more
`important, the APA’s requirement that certain rules be
`published thirty days before their effective date says nothing
`about when those rules become rules. As explained above,
`longstanding precedent holds that once an agency prescribes a
`rule, it must provide notice and comment before repealing it,
`even if the rule’s effective date has yet to pass. See Clean Air
`
`
`
`

`

`15
`Council, 862 F.3d at 6; Environmental Defense Fund, 713 F.2d
`at 813.
`
`The dissent’s reference to the Congressional Review Act
`
`is more puzzling. Like the APA, that statute requires some
`action (namely, a report to Congress) before the effective date
`of certain rules. See 5 U.S.C. § 801. And like the requirement
`that agencies publish certain rules thirty days before their
`effective date, the congressional reporting requirement has
`nothing to do with the question here: when an agency has
`prescribed a rule and thus must undertake notice and comment
`to repeal it. But unlike the APA’s requirements, the
`congressional reporting requirement has nothing to do with
`publication either. The only significance of Federal Register
`publication under the Congressional Review Act is that a so-
`called major rule may take effect sixty days after the later of
`when Congress receives the required report or when “the rule
`is published in the Federal Register, if so published.” 5 U.S.C.
`§ 801(a)(3).
`
`The dissent’s argument suffers from still another defect:
`
`many rules are exempt from the APA’s requirement that
`substantive rules be published thirty days before their effective
`date, including any rule that “relieves a restriction” or for
`which an agency finds “good cause” to avoid delay. 5 U.S.C.
`§ 553(d). Thus, even for substantive rules, publication is not a
`hard-and-fast prerequisite for a rule to become effective. The
`Congressional Review Act, too, allows a rule to take effect
`immediately if the President determines that certain conditions
`are met or an agency finds “good cause.” See 5 U.S.C.
`§§ 801(c)(1), 808.
`
`Our dissenting colleague is “not aware” of any case in
`
`which an agency has invoked these exemptions to make a
`substantive rule effective before publication. Dissenting Op. at
`
`
`
`

`

`16
`13–14. But as recently as last year, the Centers for Disease
`Control and Prevention did just that in its order requiring face
`masks on public transportation. Citing the ongoing public
`health emergency, the CDC’s order took effect February 1,
`2021—the day it was filed for public inspection and two days
`before its Federal Register publication. Requirement for
`Persons to Wear Masks While on Conveyances and at
`Transportation Hubs, 86 Fed. Reg. 8,025, 8,030 (Feb. 3, 2021);
`see also Health Freedom Defense Fund, Inc. v. Biden, No. 21-
`cv-1693, 2022 WL 1134138, at *12 (M.D. Fla. Apr. 18, 2022)
`(explaining that while the CDC initially claimed, in the
`alternative, that its order did not qualify as a rule, the
`government “abandoned” that position in litigation). Other
`agencies routinely prescribe rules with effective dates before
`publication, including substantive rules for which agencies
`must and do provide notice and an opportunity for comment.
`See, e.g., 2022-2023 Annual Specifications and Management
`Measures for Pacific Sardine, 87 Fed. Reg. 39,384 (July 1,
`2022) (seasonal fishing rule effective on date of public
`inspection following notice and comment); Pacific Halibut
`Fisheries Catch Sharing Plan, 87 Fed. Reg. 19,007 (Apr. 1,
`2022) (same).
`
`In a last-ditch effort, the dissent argues that we should find
`
`the statutory scheme ambiguous and defer
`to OFR’s
`regulations. Those regulations, however, are entirely consistent
`with our opinion. They permit an agency to withdraw “[a]
`document that has been filed for public inspection with the
`Office of the Federal Register but not yet published” through a
`“timely letter, signed by a duly authorized representative of the
`agency.” 1 C.F.R. § 18.13(a). But as the dissent observes, many
`types of documents are published in the Federal Register, not
`only rules requiring notice and comment to repeal, and many
`such documents may lawfully be withdrawn on the eve of
`publication. See Dissenting Op. at 10–11. OFR’s regulations
`
`
`
`

`

`17
`on the form and timing of such withdrawal simply say nothing
`about whether the APA—a statute OFR lacks authority to
`administer—requires notice and comment before an agency
`does so. These regulations also provide, for example, that “[a]
`document may be accepted for filing for public inspection and
`publication if it is on bond or similar quality paper, legible, and
`free of adhesive or correction tape.” 1 C.F.R. § 18.4(a). But it
`would be absurd to suggest that an agency therefore need not
`allow notice and comment so long as it transmits a rule to OFR
`on bond paper.
`
`C.
`
`Finding nothing in the relevant statutes to commend the
`
`government’s position, we turn to the government’s argument
`that precedent compels it.
`
`Only one of our cases has addressed when an agency must
`
`go through notice and comment to withdraw an unpublished
`rule. In Kennecott Utah Copper Corp. v. Department of
`Interior, we rejected a host of procedural and substantive
`challenges to natural resource damage assessment regulations.
`88 F.3d 1191 (D.C. Cir. 1996) (per curiam). Among the many
`petitioners’ many arguments, industry groups contended that
`the agency had unlawfully withdrawn a draft rule while the
`document underwent confidential OFR processing. Id. at 1205,
`1207–09. Rejecting that argument, we explained that an agency
`does not prescribe a rule by “internally approv[ing] a draft
`version of the final regulations,” meaning that the unpublished
`document “never became a rule subject to amendment or
`repeal.” Id. at 1208–09. Unlike the rule here, the document in
`Kennecott was never made available for public inspection. Id.
`at 1201.
`
`Notwithstanding Kennecott’s facts, the government and
`
`the dissent claim our statement that the agency merely
`
`
`
`

`

`18
`“rejected a document that had not yet been published” controls
`this case. Id. at 1208–09. This argument, however, seeks to
`elevate a single descriptive sentence to a major (apparently
`unreasoned) holding. Dissenting Op. at 3. In Kennecott, we did
`not purport to decide whether a rule that has been made
`available for public inspection requires notice and comment to
`repeal for a simple reason: the rule at issue had never been
`made available for public inspection. To the contrary, as we
`emphasized, the agency had only “internally approve[d]” the
`draft rule. Id. at 1208. Indeed, the parties in Kennecott never
`even briefed the significance of public inspection. As the
`Supreme Court has recently reminded us, “respect for past
`judgments also means respecting their limits.” Brown v.
`Davenport, 142 S. Ct. 1510, 1528 (2022). We decline to read
`Kennecott, as the dissent would, to resolve an important
`statutory question “on the basis of a handful of sentences
`extracted from [a] decision[] that had no reason to pass on the
`argument.” Id.
`
`The