We reference the Federal Register because agencies "must publish substantive rules in the Federal Register to give them effect." NRDC v. EPA , 559 F.3d 561, 565 (D.C. Cir. 2009) ; see 5 U.S.C. § 552(a)(1). As explained below, they must also publish them in the Code of Federal Regulations.
See Dkt. 56-1 at 433-34 (AR 0564 at 1-2) (published at 85 Fed.Reg. 83, 553 (Dec. 22, 2020)). That fact likewise renders inapt the other cases on which Plaintiffs rely, See Dkt. 43 at 31, that stand for the same proposition—that “[a]gencies must publish substantive rules in the Federal Register to give them effect, ” Nat. Res. Def. Council v. EPA, 559 F.3d 561, 565 (D.C. Cir. 2009); seealsoMorton v. Ruiz, 415 U.S. 199, 233 & n.27 (1974) (discussing the circumstances in which agency actions are “required to be published in the Federal Register” by the APA); Andrews v. Knowlton, 509 F.2d 898, 905 (2d Cir. 1975) (declaring that an agency action that was not “published in the Federal Register . . . d[id] not create legally binding rights or obligations”). Even assuming the agency action at issue constituted a “substantive rule, ” Nat. Res. Def. Council, 559 F.3d at 565, the EPA did publish its decision in the Federal Register.
See Dkt. 56-1 at 433–34 (AR 0564 at 1–2) (published at 85 Fed. Reg. 83,553 (Dec. 22, 2020) ). That fact likewise renders inapt the other cases on which Plaintiffs rely, see Dkt. 43 at 31, that stand for the same proposition—that "[a]gencies must publish substantive rules in the Federal Register to give them effect," Nat. Res. Def. Council v. EPA , 559 F.3d 561, 565 (D.C. Cir. 2009) ; see alsoMorton v. Ruiz , 415 U.S. 199, 233 & n.27, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) (discussing the circumstances in which agency actions are "required to be published in the Federal Register" by the APA); Andrews v. Knowlton , 509 F.2d 898, 905 (2d Cir. 1975) (declaring that an agency action that was not "published in the Federal Register ... d[id] not create legally binding rights or obligations"). Even assuming the agency action at issue constituted a "substantive rule," Nat. Res. Def. Council , 559 F.3d at 565, the EPA did publish its decision in the Federal Register.
The Report accepted this preamble and held that PCC can be abandoned if agricultural use ceased (Docket No. 334, R&R at 93-94, 2018 WL 3861612, at *33). Defendants argued that "general policy statements not included in the Code of Federal Regulations do not have the force of law and are not binding on the public, or the agency" (Docket No. 279, Defs. Memo. at 37, citing Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 539 (D.C. Cir. 1986); see also Natural Resources Defense Council v. EPA, 559 F.3d 561, 565 (D.C. Cir. 2009)) (see also Docket No. 334, R&R at 94, 2018 WL 3861612, at *33). This Court declined to extend Brock to this case, Huntress, supra, 2013 WL 2297076, at *13, Order at 24-25.
See, e.g., Natural Res. Def. Council v. EPA, 559 F.3d 561, 563–64 (D.C.Cir.2009); Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075, 1097 (D.C.Cir.1996); Ohio v. EPA, 997 F.2d 1520, 1528 (D.C.Cir.1993); Linemaster Switch Corp. v. EPA, 938 F.2d 1299, 1308 (D.C.Cir.1991); Natural Res. Def. Council v. Thomas, 805 F.2d 410, 427 (D.C.Cir.1986).
See, e.g., Natural Res. Def. Council v. EPA, 559 F.3d 561, 563-64 (D.C. Cir. 2009); Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075, 1097 (D.C. Cir. 1996); Ohio v. EPA, 997 F.2d 1520, 1528 (D.C. Cir. 1993); Linemaster Switch Corp. v. EPA, 938 F.2d 1299, 1308 (D.C. Cir. 1991); Natural Res. Def. Council v. Thomas, 805 F.2d 410, 427 (D.C. Cir. 1986).
On March 24, 2009, defendants filed a Notice of Supplemental Authority, citing Natural Resources Defense Council v. EPA, 559 F.3d 561 (D.C. Cir. 2009) (" NRDC"), as support for their position that the statements in the Final Rule regarding the import ban are not final agency action. In NRDC, however, the Court of Appeals for the D.C. Circuit found that in the preamble that plaintiff challenged, the agency "spoke in the conditional, suggesting that events in the various categories 'may be exceptional events' or 'may qualify for exclusion under this rule provided that all other requirements are met.'"
In other contexts, this court and our sister circuits have recognized that publication is the point at which a regulation is final and legally binding and therefore marks the end of an agency's rulemaking process. See, e.g. , Nat. Res. Def. Council v. EPA , 559 F.3d 561, 565 (D.C. Cir. 2009) ("Agencies must publish substantive rules in the Federal Register to give them effect" as "[a]n unpublished final rule ... can have no legal consequences."); Am. Petroleum Inst. v. EPA , 216 F.3d 50, 68 (D.C. Cir. 2000) (per curiam) (noting that "publication or lack thereof in the Federal Register" is helpful when "determining whether an agency has taken final action"); see also, e.g. , Nat. Res. Def. Council v. Nat'l Highway Traffic Safety Admin. , 894 F.3d 95, 106 (2d Cir. 2018) ("It is a basic tenet of administrative law, set out by the APA, that a substantive regulation does not have legal effect—that is, it has not been established authoritatively—until it has been published in the Federal Register. In other words, a regulation is not prescribed until it has legal effect, and it does not have legal effect until it is published in the Federal Register.") (cleaned up); River Runners for Wilderness v. Martin , 593 F.3d 1064, 1072 (9th Cir. 2010) (per curiam) (explaining the agency
See id. (emphasis added); see also Nat. Res. Def. Council v. EPA , 559 F.3d 561, 565 (D.C. Cir. 2009) (emphasizing, in the context of evaluating finality, a distinction between "may" and "will"). The Agency referenced other uses that commenters had suggested should be excluded from the scope of a risk evaluation, but explicitly decided not to definitively exclude any "specific conditions of use," explaining that it would make "reasonable, technically sound scoping decisions" with respect to each individual substance evaluated.
The preambular language concerning the scope of risk evaluations indicates only that EPA could "exercise discretion" about the context in which it could evaluate a substance that is present as an impurity, and "may choose not to" ever consider the impurity when its risk would be de minimis. See id. (emphasis added); see also Nat. Res. Def. Council v. EPA, 559 F.3d 561, 565 (D.C. Cir. 2009) (emphasizing, in the context of evaluating finality, a distinction between "may" and "will"). The Agency referenced other uses that commenters had suggested should be excluded from the scope of a risk evaluation, but explicitly decided not to definitively exclude any "specific conditions of use," explaining that it would make "reasonable, technically sound scoping decisions" with respect to each individual substance evaluated.