the Code of Federal Regulations, while other categories appear only in the daily Federal Register. 117 Agencies also must submit the full text of a rule or rule amendment to the Office of the Federal Register for publication, unless the Office approves incorporation by reference of material 115 in the rule. The basis of this requirement is statutory, and 116 failure to comply with it can lead to invalidation of the rule. To avoid the expense of publication, some agencies have attempted to incorporate into final rules other documents produced by the agency. However, the rules of the Federal Register generally do not allow agencies to incorporate by reference other documents of the agency, or material previously published in the Federal Register or the United States Code." Therefore, an agency may not have published, as a final rule, a document that attempts to incorporate by reference part of the text of a proposed rule previously published in the Federal Register. 118 Agencies also must observe the Office of the Federal Register's filing rules. The Federal Register Act requires certain documents, including rules, to be "filed" with the Office of the Federal Register for publication, and "[ulpon filing, at least one copy shall be immediately available for public inspection in the Office."119 But the Office of the Federal Register does not consider delivery of a document to the Register as "filing." The Office of the Federal Register's Document Drafting Handbook states: A document is considered filed with the Office 115/ Section 552(a)(1)(D) of the APA requires agencies to publish substantive rules of general applicability. Although agencies are not required to publish the text of a proposed rule (5 U.S.C. S 553(b)), final rules must be published in their entirety. See also Document Drafting Handbook $ 2.15 supra note 114, at 16. 116/ See, e.g., Appalachian Power Co. v. Train, 566 F.2d 451, 455 (4th Cir. 1977). 117/ At the time of this writing in mid-1983, a page in the Federal Register costs the agency $408.00. 118/ 1 C.F.R. § 51.7(b)-(c) (1983). 119/ 44 U.S.C. § 1503 (1976). received and processed by the OFR and made (1) The OFR will file each document for public (3) The OFR may not release information concerning a document to the public before the document is filed for public inspection. The Federal Register filing requirements are especially important to agencies issuing emergency rules under the APA or some other statute. If given advance warning, the staff of the Office of the Federal Register will work with agencies to expedite the filing and publication of emergency rules.121 122 Besides establishing publication requirements, the Office of the Federal Register provides valuable assistance and services to agencies publishing final rules. For example, the Office of the Federal Register will publish rules as a separate part of the Register, and agencies can request overruns of the separate part. 123 5. Announcing a starting time for "races to the courthouse." The subject of judicial review of final rules is discussed in the next, and final, chapter of this guide. However, one topic that is appropriately discussed here is the triggering of the starting gun for the race to the courthouse by persons who seek judicial review review of a rule. The "race-to-the-courthouse" 120/ Document Drafting Handbook S 5.5(b), supra note 114, at 39. 121/ The Office of the Federal Register has special rules for publication of emergency rules, 1 C.F.R. SS 17.3-17.4, and the Document Drafting Handbook contains a special form for requesting special handling for documents, supra note 114, at 42. 122/ It should be noted that the validity of a rule cannot be challenged on the ground that, although published, it fails to meet the Federal Register's format requirements. 1 C.F.R. S 5.1(c) (1983). 123/ 1 C.F.R. S 7.5 (1983). 1 24 phenomenon is described fully later, but it relates to the selection of venue (or location of the litigation) if lawsuits are brought in more than one federal court of appeals. Under 28 U.S.C. S 2112, the agency is required to file the record of the proceeding with the court in which "a proceeding with respect to such order was first instituted." This rule has led to elaborate races to the courthouse by interested persons who seek to locate the lawsuit in the court they believe will view their case most favorably. 125 Some agencies have attempted to make the race fairer to interested persons by specifying, when they publish a final rule, an exact time (or "trigger") for the beginning of the race. For example, Southland Mower Co. v. Consumer Product Safety Commission 126 involved selection of venue when the agency's rule specified the time of promulgation as noon on the tenth day 127 following publication of the rule in the Federal Register. The agency gave the following reason for selection of the time of promulgation: This procedure would provide all interested review. Other agencies, such as the Environmental Protection Agency and Federal Trade Commission, have adopted regulations establishing the starting times for races to the courthouse. 129 124/ See Chapter Nine at p. 243. 125/ 28 U.S.C S 2112(a). 126/ 600 F.2d 12 (5th Cir. 1979). 127/ Id. at 13. 128/ Quoted and cited in Southland Mower Co. v. CPSC, id.. 129/ See authorities cited in McGarity, Multi-party Forum Shopping for Appellate Review of Administrative Action, 129 U. Pa. L. Rev. 302, n. 17 (1980). CHAPTER NINE: JUDICIAL REVIEW OF FINAL RULES In many instances publication of the final rule does not end the rulemaking process because significant rules are often challenged in court. There is a presumption in favor of the judicial reviewability of rules. Such challenges, depending on statutory requirements, must be filed in either the appropriate federal district court or the appropriate court of appeals. Absent explicit statutory language to the contrary, judicial review of rules may normally be sought either before the enforcement of the rule ("preenforcement review") or at the time of enforcement. Some statutes specify the timing of review by explicitly authorizing (or requiring) pre-enforcement review; other statutes may limit the scope of review at the enforcement stage. But whatever the particulars of the statutory provision that controls the forum, place (or "venue"), and timing of review, an agency must assume that any significant rule will likely come under judicial scrutiny. Therefore, agencies must lay the groundwork for a successful defense of its rule during the rulemaking process itself. If this is not done, the court may "vacate" the rule, and remand it back to the agency for a new round of rulemaking and consequent delay, or the court may relieve a defendant from any obligation to comply with the agency's rule. A. Scope of Review - General Provisions. As mentioned above, the particular statute authorizing the rule may govern the forum, venue and timing of review. But the scope of review (i.e., the standard by which the court evaluates the rule) is normally governed by section 706 of the Administrative Procedure Act and the many cases interpreting it. And even where the authorizing statute describes the scope of review, it usually does so in the language of the APA. Therefore, section 706 1/ 5 U.S.C. $706 (1976). is set forth here in full: $706. Scope of review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance procedure required by law; of (E) unsupported by substantial evidence in a case subject to sections (F) unwarranted by the facts to In making the foregoing determinations, the court shall Other relevant judicial review provisions that are generally applicable to rulemaking include that of the Regulatory Flexibility Act: |