State of Mississippi v. DOE

Case: 24-60529 Document: 99-1 Page: 1 Date Filed: 08/11/2026 United States Court of Appeals for the Fifth Circuit ____________ No. 24-60529 ____________ State of Mississippi; State of Montana; State of Louisiana; State of Nebraska; State of Tennessee; State of Texas; State of Utah, Petitioners, versus Department of Energy, Respondent. ______________________________ Appeal from the Department of Energy Agency Nos. 89 Fed. Reg. 11,434, 89 Fed. Reg. 65,520 ______________________________ Before Haynes, Ho, and Oldham, Circuit Judges. Andrew S. Oldham, Circuit Judge: The Biden Administration proposed numerous regulations to make home appliances more expensive and less useful. See, e.g., Louisiana v. DOE, 90 F.4th 461 (5th Cir. 2024). As part of that effort, one official even proposed banning gas stoves. See Ari Natter, US Safety Agency to Consider Ban on Gas Stoves Amid Health Fears, Bloomberg (Jan. 9, 2023), https://perma.cc/7E2V-DFN5 (quoting statement of Consumer Product Case: 24-60529 Document: 99-1 Page: 2 Date Filed: 08/11/2026 No. 24-60529 Safety Commission official Richard Trumpka, Jr.). These efforts generated significant controversy and public backlash. Rather than confront that controversy, the previous Administration attempted to dodge it. In this case, the Department of Energy created new regulations on home cooking appliances, including gas stoves, through a “Direct Final Rule.” What does that mean? It means the Biden Administration promulgated a rule without giving the public advance notice or the opportunity to comment on it. Petitioners are several States that are aggrieved by the Direct Final Rule. Their objections are well taken, so we grant the petition for review. I In February 2024 the Department of Energy (“DOE” or “the Department”) published a Direct Final Rule (“the Rule” or “the DFR”). The DFR “adopted new and amended energy conservation standards for” consumer-grade stoves and cooktops. Energy Conservation Standards for Consumer Conventional Cooking Products, 89 Fed. Reg. 11434 (Feb. 14, 2024) (“DFR”) (codified at 10 C.F.R. § 430). We (A) outline the Department’s authority to issue the DFR, (B) discuss the DFR at issue, and (C) recount the States’ challenge. A The Department’s authority over household stoves and cooktops comes from the Energy Policy and Conservation Act. See Pub. L. No. 94-163, 89 Stat. 871 (1975) (“EPCA” or “the Act”). Under the EPCA, the Department may promulgate minimum efficiency standards for a variety of products, including air conditioners, water heaters, lamps, and cooking appliances. See 42 U.S.C. § 6295. The EPCA requires that any new efficiency standard “be designed to achieve the maximum improvement in energy efficiency” that is both “technologically feasible and economically 2  Case: 24-60529 Document: 99-1 Page: 3 Date Filed: 08/11/2026 No. 24-60529 justified.” Id. § 6295(o)(2)(A). A new standard is “economically justified” if “the benefits of the standard exceed its burdens.” Id. § 6295(o)(2)(B)(i). The EPCA lays out seven factors to guide the cost-benefit analysis.1 If DOE weighs these factors and finds a new standard justified, it has two options. First, DOE can engage in the traditional notice-and-comment rulemaking. That works just like every other notice-and-comment process. The Department can publish a notice of proposed rulemaking, solicit comments from “interested persons,” respond to those comments in non- arbitrary and non-capricious ways, and then promulgate a final rule. See id. § 6295(p)(1)–(3). Second, and in the alternative, the EPCA allows the Department to promulgate a “Direct Final Rule.” Id. § 6295(p)(4). As the name suggests, direct final rules can be promulgated without advance notice of the proposed rule or a pre-decisional comment period. Instead, the Department need only obtain a statement recommending an energy conservation standard that is “submitted jointly by interested persons . . . fairly representative of relevant points of view.” Id. § 6295(p)(4)(A). The Department then considers whether the proposed standard “is in accordance” with the seven energy- efficiency factors. If it is, DOE “may issue a final rule that establishes” the recommended standard. Id. § 6295(p)(4)(A)(i). _____________________ 1 The seven factors can be summarized as follows: (1) the economic impact of the standard on the manufacturers and on the consumers of the covered products; (2) the savings in operating costs throughout the estimated average life of the covered product compared to any increases in price; (3) the total projected amount of energy savings likely to result; (4) any lessening of the utility or the performance of the covered products; (5) the impact of any lessening of competition; (6) the need for national energy and water conservation; and (7) other factors the Secretary [of Energy] considers relevant. 42 U.S.C. § 6295(o)(2)(B)(i)(I)–(VII). 3 Case: 24-60529 Document: 99-1 Page: 4 Date Filed: 08/11/2026 No. 24-60529 Because DFRs dispense with foundational guardrails on rulemaking, the EPCA places important limits on them. After issuing a DFR, the Department “shall solicit public comment for a period of at least 110 days with respect to” that DFR. Id. § 6295(p)(4)(B). And “[n]ot later than 120 days after the date on which a” DFR is issued the Department “shall withdraw the [DFR] if . . . the [Department] receives 1 or more adverse public comments relating to the [DFR]” and “the [Department] determines that such adverse public comments . . . may provide a reasonable basis for withdrawing the [DFR] under” the seven energy-efficiency factors. Id. § 6295(p)(4)(B), (C)(i)(I)–(II). And after withdrawing the DFR, the Department must publish the reasons for withdrawing the DFR in the Federal Register and then proceed with ordinary notice-and-comment rulemaking like virtually every other administrative agency in Washington, D.C. Id. § 6295(p)(4)(C)(ii)(I)–(II). B In this case, the Department initially tried to implement new efficiency standards for consumer cooking appliances through notice-and- comment rulemaking. See Energy Conservation Standards for Consumer Conventional Cooking Products, 88 Fed. Reg. 6818, 6820 (Feb. 1, 2023). The Department also proposed efficiency requirements that would have effectively banned gas stoves and ranges. See DFR, 89 Fed. Reg. at 11484 (noting comments on the 2023 proposal predicting “market elimination of gas cooking products”). But the Department never got past notice-and- comment. After a veritable avalanche of adverse comments from a variety of industry groups, the Department abandoned both initiatives. See ibid. (summarizing comments on the 2023 rule). This also was the first time since the EPCA’s enactment that the Department had proposed efficiency standards for consumer kitchen appliances. 4 Case: 24-60529 Document: 99-1 Page: 5 Date Filed: 08/11/2026 No. 24-60529 Having failed at notice and comment, the Department then decided to bypass notice and comment altogether. It instead promulgated a DFR that would have the force and effect of law before any comments could derail it. In the DFR, the Department set many of the same energy-efficiency requirements it had attempted earlier. See id. at 11435. It limited these requirements to “consumer conventional cooking products,” like ovens, stoves, and cooktops. Ibid. While the new efficiency standards were multifaceted, they boiled down to a single metric: the maximum “Integrated Annual Energy Consumption,” or IAEC, standard. Ibid. Roughly speaking, the IAEC reflects how much energy an appliance may consume in a given year when used by the average consumer. Id. at 11436. The lower the IAEC, the less energy an appliance may consume in daily operation and, as a result, the more efficient the manufacturer’s design must be. The DFR also announced a ban on the use of a certain type of power supply, called a linear power supply. Ibid. Power supplies convert alternating current (AC) into direct current (DC) to power the appliance. In short, linear power supplies involve a single step to convert from AC to DC, while switching power supplies involve a two-step process. Because of their two- step process, the latter require more components than the former and thus are more mechanically complex. But switching power supplies consume less power than linear power supplies. So to promote energy efficiency, the Department decided to ban linear power supplies. C Before promulgating the DFR, the Department published a joint statement from purported stakeholders. 42 U.S.C. § 6295(p)(4)(A). The statement was signed by representatives of the Department, several industry groups, and environmental activists. Relevant here, it proposed a range of 5 Case: 24-60529 Document: 99-1 Page: 6 Date Filed: 08/11/2026 No. 24-60529 new standards for covered appliances and recounted the stakeholders’ agreement with those standards. The Department issued the DFR on February 14, 2024. In accordance with the EPCA, the Department noted in the DFR that it would observe a 110-day comment period; withdraw the DFR if the comments gave a reasonable basis to believe the Rule did not comply with the EPCA; and, if necessary, begin the notice-and-comment process instead. DFR, 89 Fed. Reg. at 11434. The 110-day comment period would run from February 14 to June 3, and the DFR would become effective on June 13, 2024. Ibid. In the event of withdrawal, the Department promised to post a “timely withdrawal of this rule” in the Federal Register consistent with the statutorily mandated 120-day period. Ibid.; see 42 U.S.C. § 6295(p)(4)(C)(i). Petitioners are six States that filed two timely comments on the last day of the 110-day comment period, June 3, 2024.2 Nebraska’s Attorney General authored one comment and was joined by 22 other States. See ARID.187. Utah and Montana added another comment. See ARID.190. The Nebraska comment attacked the rule on several fronts, including that the Department failed to account for criticism leveled against the exact same standards in the failed notice-and-comment rulemaking attempt; that the signers of the Joint Statement were not fairly representative; and that the DFR’s standards did not satisfy the seven energy-efficiency factors in § 6295(o)(2)(B)(i). The comment from Utah and Montana raised additional arguments: that the Department erroneously assumed its new efficiency _____________________ 2 An industry group, the American Public Gas Association, also filed an adverse comment. The comment generally supported the Joint Statement and the DFR but expressed hesitation about the Department’s cost-savings analysis: the proposed cost- savings amounted to about $3.09 per consumer, spread out over the average 14.5-year lifespan of a product, which came out to .06 cents saved per day. 6 Case: 24-60529 Document: 99-1 Page: 7 Date Filed: 08/11/2026 No. 24-60529 standards would not reduce product lifespan; that requiring switching power supplies over linear power supplies would reduce product lifespan; and that none of the DFR’s emissions calculations accounted for the reduction in lifespan, since a shorter lifespan would require consumers to buy more products in the long run and increase emissions. The Department did not respond until August 12, 2024. On that day, the Department filed a Confirmation Notice on the DFR’s docket, stating that it found none of the States’ comments provided a reasonable basis for withdrawing the rule. See Energy Conservation Program: Energy Conservation Standards for Consumer Conventional Cooking Products, 89 Fed. Reg. 65520 (Aug. 12, 2024) (“Confirmation Notice”). The States responded by filing a petition for review in this court on October 10, fifty- nine days later. The Department then moved to dismiss the petition for lack of jurisdiction. We carried that motion with the petition. II Historical context is essential to understanding the parties’ arguments. We therefore begin with (A) the longstanding presumption of judicial review of agency action and (B) the history of direct final rulemaking. A As long as there has been an administrative state, there has been judicial review of agency action. Congress created the “first modern regulatory agency,” the Interstate Commerce Commission (“ICC”), in 1887. West Virginia v. EPA, 597 U.S. 697, 740 (2022) (Gorsuch, J., concurring) (quoting Susan E. Dudley, Milestones in the Evolution of the Administrative State, 3 Daedalus (Nov. 2020)). While the ICC was initially limited to the role of supervising railroad rates, Congress expanded its authority in the early twentieth century. Paul Stephen Dempsey, The Rise and Fall of the Interstate Commerce Commission: The Tortuous Path from 7 Case: 24-60529 Document: 99-1 Page: 8 Date Filed: 08/11/2026 No. 24-60529 Regulation to Deregulation of America’s Infrastructure, 95 Marquette L. Rev. 1151, 1163–65 (2012). For Progressives looking to enlarge the administrative state, the ICC became “the model” agency. Id. at 1163. The ICC was Congress’s model for the Food and Drug Administration (1906), the Federal Trade Commission (1914), and the Tariff Commission (1916). Ronald A. Cass, Rulemaking Then and Now: From Management to Lawmaking, 28 Geo. Mason L. Rev. 683, 691 (2021). Rule-by-expert became all the rage. See Cochran v. SEC, 20 F.4th 194, 214–15 (5th Cir. 2021) (Oldham, J., concurring); Joseph Postell, Bureaucracy in America 174– 77 (2017). From the very beginning, however, even the progressive Congresses did not allow administrative agencies to reign unchecked. The Hepburn Act of 1906 formalized judicial review of agency action in federal court. And in a series of cases applying the Hepburn Act, the Court adopted the now-familiar standard of appellate review for challenges to agency lawmaking. The reviewing court was limited to the agency’s evidentiary record, deferred to agency determinations of fact supported by substantial evidence, and decided questions of law de novo. See Fred Halbhuber, The State-Law Origins of the Appellate Review Model, 135 Yale L.J. 2674, 2686–88 (2026). These Hepburn Act precedents were the foundation for the Administrative Procedure Act (“APA”), which Congress adopted in 1946. In these early days, however, Congress did not affirmatively authorize judicial review of all agencies and all agency actions. For much of the early twentieth century, Congress authorized judicial review on a patchwork, agency-by-agency basis. See, e.g., Roni A. Elias, The Legislative History of the Administrative Procedure Act, 27 Fordham Env. L. Rev. 207, 207–11 (2015). What if Congress was silent about a particular agency and a particular petition for review? As early as 1902, the Supreme Court suggested that judicial review presumptively applies—unless and until Congress clearly 8 Case: 24-60529 Document: 99-1 Page: 9 Date Filed: 08/11/2026 No. 24-60529 abrogates it: “Otherwise, the individual is left to the absolutely uncontrolled and arbitrary action of a public and administrative officer” even where that action “is unauthorized by any law and is in violation of the rights of the individual.” Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110 (1902). Subsequent cases fleshed out this presumption. In case after case, the Court rejected any contention that judicial review could be cut off by congressional silence. See Philadelphia Co. v. Stimson, 223 U.S. 605, 620 (1912) (declaring judicial review “applicable to a Federal officer acting in excess of his authority or under an authority not validly conferred”); Shields v. Utah Idaho Cent. R.R. Co., 305 U.S. 177, 184 (1938) (“[W]e think respondent was entitled to resort to equity in order to obtain a judicial review of the questions of the validity and effect of the Commission’s determination purporting to fix its status.”); Columbia Broad. Sys. v. United States, 316 U.S. 407, 422 (1942) (“The Commission’s contention that the regulations are no more reviewable than a press release is hardly reconcilable with its own recognition that the regulations afford legal basis for cancellation of the license of a station.”); Stark v. Wickard, 321 U.S. 288, 310 (1944) (“Congress established courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by the exertion of unauthorized administrative power.”); Bd. of Governors of Fed. Rsrv. Sys. v. Agnew, 329 U.S. 441, 444 (1947) (rejecting the Board’s argument that the “absence of an express right of review” means that orders of the Board were not subject to review). Importantly, this presumption both predated and informed the APA. The APA “was but one of a long sequence of laws in which Congress authorized courts to review agency action.” Mila Sohoni, The Past and Future of Universal Vacatur, 133 Yale L.J. 2304, 2326 (2024); see also Abbott Laby’s v. Gardner, 387 U.S. 136, 140 (1967) (emphasizing that the APA “embodies 9 Case: 24-60529 Document: 99-1 Page: 10 Date Filed: 08/11/2026 No. 24-60529 the basic presumption of judicial review”); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971); Heckler v. Chaney, 470 U.S. 821, 826 (1985). And while pre-APA cases grounded the presumption in first principles, see, e.g., McAnnulty, 187 U.S. at 110, Congress cemented the presumption in the APA’s text. The APA provides only two circumstances when agency action is not subject to judicial review: when “(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). Both these exceptions are extraordinarily narrow. Courts have read statutes to preclude judicial review only upon “clear and convincing evidence of” legislative command. Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 672 (1986). And courts have read the agency-discretion exception to apply only in “rare . . . decisions traditionally left to agency discretion.” Dep’t of Homeland Sec. v. Regents of the Univ. of Calif., 591 U.S. 1, 16–17 (2020). In sum, Article III courts have been reviewing administrative regulations since the birth of the administrative state. From the very beginning, courts have presumed that such review was available even in the absence of statutory text. And this presumption was confirmed in the text of the APA. As a result, both text and history require us to be skeptical of any argument that Congress intended to cut off the opportunity for judicial review of agency action. B Now, to the history of direct final rulemaking. At the beginning, agencies primarily crafted new rules through adjudicating individual cases. See SEC v. Chenery Corp., 332 U.S. 194, 201– 02 (1947). But adjudication was inherently “retrospective, unpredictable, and ar[ose] in fact-bound situations,” so it was difficult for regulated parties 10 Case: 24-60529 Document: 99-1 Page: 11 Date Filed: 08/11/2026 No. 24-60529 to anticipate. Trader Joe’s v. NLRB, 167 F.4th 766, 795 (5th Cir. 2026) (Oldham, J., dissenting). At its apex in the New Deal, this approach led Roscoe Pound to opine that “agencies were acting without considered judgment, without due process, without sufficient consideration of the issues, and without granting parties the right to be heard or procedures for relief.” Elias, supra at 210. Congress responded by formalizing the agency rulemaking process in the APA. 5 U.S.C. § 553. Following the APA, a court “assumes that an agency’s exercise of rulemaking must abide by [APA] procedures unless certain exceptions apply.” City of Billings v. Transp. Sec. Admin., 153 F.4th 46, 51 (D.C. Cir. 2025). One such exception allows an agency to avoid notice and comment “for good cause.” 5 U.S.C. § 553(b)(4)(B). Over the years, agencies have attempted to exploit the good-cause loophole in various ways. See Philip Hamburger, Is Administrative Law Unlawful? 111 (2014) (referring to these as a “cascade of evasions”). First, agencies began proposing interim final rules, or IFRs. These rules were immediately effective but subject to alteration in response to comments. See generally Michael Asimow, Interim-Final Rules: Making Haste Slowly, 51 Admin. L. Rev. 703 (1999). When IFRs proved difficult, agencies invented direct final rules, or DFRs. Like IFRs, DFRs were promulgated without advance notice or the opportunity for members of the public to object or comment. Unlike IFRs, however, DFRs could not be altered in response to post-promulgation comments. Rather, DFRs were all or nothing. The agency simply published a rule with a statement that the rule would become effective as written unless the agency received an adverse comment. See generally Ronald M. Levin, Direct Final Rulemaking, 64 Geo. Wash. L. Rev. 1 (1995). 11 Case: 24-60529 Document: 99-1 Page: 12 Date Filed: 08/11/2026 No. 24-60529 If an agency can unilaterally dispense with advance notice and comment by announcing “good cause,” you might reasonably wonder why any agency would ever promulgate rules with notice and comment. The answer is that agencies traditionally limited DFRs to consensus-based regulations. The EPA popularized this approach when it developed state implementation plans under the Clean Air Act in the 1980s. Id. at 4. Many of these plans were “straightforward” and received zero comments. Ibid. If the proposal would receive zero comments and enjoy universal support, the reasoning went, then waiting for a proposed rule to go into effect after a meaningless comment period was just delay for delay’s sake. Id. at 2; see also Administrative Conference of the United States, Recommendation 95-4, Procedures for Noncontroversial and Expedited Rulemaking, 60 Fed. Reg. 43108, 43110 (June 15, 1995). So just as the United States Senate can avoid a roll-call vote by unanimous consent, agencies arrogated to themselves the power to skip notice and comment by unanimous consent. What happened if someone—anyone—objected? Just as one objection defeats unanimous consent in the Senate, so too did it defeat the “good cause” for issuing a DFR. The EPA invariably withdrew a DFR that proved more controversial than expected—even when it received only a single adverse comment. Levin, supra, at 5; see also id. at 23 (“[A]n agency should resort to [a DFR] only in developing rules that are truly likely to be noncontroversial.”). Other agencies followed this practice. Id. at 5. Alongside DFRs, agencies also published notices of proposed rulemaking for notice-and-comment procedure. That way, if anyone pushed back on the DFR, the agency could simply withdraw the DFR and proceed with notice and comment the old-fashioned way. See id. at 3–6. In this way, the DFR process harmonized the agency’s interest in prompt promulgation of uncontroversial rules and the regulated community’s interest in procedural regularity. This procedure explains why there are virtually no judicial 12 Case: 24-60529 Document: 99-1 Page: 13 Date Filed: 08/11/2026 No. 24-60529 precedents on DFRs: If anyone objected to a DFR, the agency withdrew it. Indeed, after about a decade of using DFRs, the EPA reported in 1999 that a DFR had never faced a legal challenge. Id. at 10. Congress drew on this practice when it added a DFR provision to the EPCA in 2007. Responding to the Department’s complaint that ordinary rulemaking had “hindered the expeditious promulgation of rules . . . even in cases where there is broad agreement,” Blue Br. at 7, Congress provided explicit DFR authority in § 6295(p)(4) via the Energy Independence and Security Act of 2007. Congress could hardly have tracked prior DFR practice more closely. For one, DFRs were permitted only upon a joint statement “by interested persons” that showed consensus among parties “fairly representative of relevant points of view,” such as “manufacturers of covered products, States, and efficiency advocates.” 42 U.S.C. § 6295(p)(4)(A). Further, DFRs would be published simultaneously with an “identical” notice of proposed rulemaking. Id. § 6295(p)(4)(A)(i). The Department was expected to withdraw DFRs on receipt of “1 or more adverse public comments,” assuming those comments “may provide a reasonable basis” for doubting the DFR’s legality. Id. § 6295(p)(4)(C)(i)(I)– (II) (emphasis added). And the Secretary had to “proceed with the notice of proposed rulemaking” if the DFR were withdrawn. Id. § 6295(p)(4)(C)(ii)(I). In sum, § 6295(p)(4) reflects Congress’s intent to formalize pre- existing DFR practice. That practice was reserved for noncontroversial rules that were withdrawn upon minimal pushback from regulated parties. III We now turn to (A) the Department’s attack on our authority to review the States’ petition and (B) the merits of the petition itself. A 13 Case: 24-60529 Document: 99-1 Page: 14 Date Filed: 08/11/2026 No. 24-60529 We have authority to review the States’ challenge. We explain (1) why the text and history of the EPCA confirm that authority and (2) why the Department’s counterarguments are unpersuasive. 1 Start as always with the statutory text. As to the timeliness of any petition for review, several provisions of the EPCA are relevant. After promulgating a DFR, the EPCA requires the Department to accept adverse comments for “at least 110 days.” 42 U.S.C. § 6295(p)(4). Then the Department has ten more days—so 120 days after the promulgation of the DFR—to announce whether it will withdraw the DFR. Id. § 6295(p)(4)(B). If the Department withdraws the DFR, it “shall not be considered a final rule.” Id. § 6295(p)(4)(C)(iii). The EPCA also provides a timing provision for all petitions for review: “[A]ny person who will be adversely affected by a rule prescribed under” the Act may petition for review “within 60 days after the date on which the rule is prescribed.” Id. § 6306(b)(1). The question presented is when a DFR is “prescribed” within the meaning of § 6306(b)(1)? The ordinary meaning of “prescribe” is “[t]o lay down authoritatively as a guide, direction, or rule of action; to impose as a peremptory order; to dictate; direct; ordain.” Prescribe, Webster’s Second New International Dictionary 1954 (1934; 1951 ed.). That is, “prescribe” connotes a final, binding, authoritative rule. The Department contends that the DFR was “prescribed” on the date it first appeared in the Federal Register, February 14, 2024. After all, the Department reasons, the DFR was final and authoritative on the day it was prescribed—that’s why it’s called a direct final rule. So that means the 60- day window for filing any petition began on February 14 and concluded on April 15, 2024. Because the States did not petition until August 12 of that 14 Case: 24-60529 Document: 99-1 Page: 15 Date Filed: 08/11/2026 No. 24-60529 year, the Department claims that we lack authority to adjudicate their petition. We agree with the Department that finality matters, but we disagree that it matters in a way that helps the Department. In the context of the APA, an administrative action is “final” and reviewable “if: (1) the agency’s action is the consummation of the agency’s decisionmaking process; and (2) the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Texas v. Equal Emp. Opportunity Comm’n, 827 F.3d 372, 380 (5th Cir.) (quotations omitted), opinion withdrawn on reh’g, 838 F.3d 511 (5th Cir. 2016). But a DFR’s publication is not the consummation of the Department’s decisionmaking. Far from it. The Department must “solicit public comment” for at least 110 days, withdraw the DFR where comments “may provide a reasonable basis” for doing so and, after withdrawal, proceed with the ordinary notice-and-comment process and “publish” an explanation for withdrawal in the Federal Register. 42 U.S.C. § 6295(p)(4)(B)–(C). Under the statute’s plain language, then, the Department’s work is not done until it receives public comments and adheres to the DFR. And the Department cannot close up shop until the comment period ends and no one objects to the DFR: That’s because the Department “shall withdraw the direct final rule” upon receipt of one or more adverse comments. Id. § 6295(p)(4)(C)(i) (emphasis added). Thus, DFRs are not “prescribed” until the Department adheres to the challenged standard. The EPCA’s finality provision reinforces this conclusion. In the section entitled “[t]reatment of withdrawn final rules,” the EPCA states that a withdrawn DFR “shall not be considered to be a final rule.” Id. § 6295(p)(4)(C)(iii). If a withdrawn DFR is not final, then a DFR cannot be final until the Department adheres to it. Under the Department’s contrary reading, the DFR is “final” on day 1 (when it issues) and then non-final on day 120 (when the Department withdraws it in the face of public opposition). 15 Case: 24-60529 Document: 99-1 Page: 16 Date Filed: 08/11/2026 No. 24-60529 Going from dead to alive is the great promise of Holy Scripture, but the Department cites no authority for its relevance to administrative law. Similarly, if DFRs are “prescribed” when published on day 1, then Congress’s comment period is meaningless surplusage. Congress gave interested members of the public 110 days to comment; but in the Department’s view, the last 50 of those are meaningless. Why? Because any petition for review must be filed on day 60, the Department says—50 days before the end of the comment period. So if you wait until, say, day 61 to file your negative comment—something that Congress expressly authorized you to do—then by the time you provide your comment, your right to judicial review has already expired. Thus, by hypothesis, the Department could receive zero negative comments for the first 60 days, then 10,000 blisteringly negative comments in the last 50. Imagine further that all 10,000 of those comments raise myriad well-taken objections to the DFR, including that it’s directly contrary to the laws and Constitution of the United States. According to the Department, it retains absolute, unbridled power and discretion to ignore all those comments and retain the (by hypothesis) flagrantly illegal rule. Because by the time the first negative comment was timely filed, the period of judicial review was already closed. In our view, that makes a mindless hash of Congress’s statutory scheme. That’s particularly true when a much more reasonable reading of the statute is readily apparent: The DFR is reviewable, as virtually all agency action is, when the Department’s work is done, i.e., upon adherence. * In sum, statutory text and the presumption of reviewability all point in the same direction: DFRs are “prescribed” under § 6306(b)(1) when the rulemaking process concludes—not when it starts. When the Department receives adverse comments potentially requiring withdrawal, the process 16 Case: 24-60529 Document: 99-1 Page: 17 Date Filed: 08/11/2026 No. 24-60529 concludes when the Department rejects those comments and adheres to the DFR. Here, the DFR became final on August 12. That is when the Department formally notified the States that it did not believe their negative comments required withdrawal of the DFR. See Confirmation Notice, Fed. Reg. at 65520. The States filed their petition for review 59 days later, on October 10. Because the petition was filed within § 6306(b)(1)’s 60-day deadline, our review is timely.3 2 None of the Department’s counterarguments is persuasive. First, the Department denies that its position forecloses judicial review. The Department asserts that the States could have enjoyed review by simultaneously filing their adverse comments and petition for review. That is not at all obvious. In any other regulatory context, a petition for review that precedes a final decision would be unripe. Bennett v. Spear, 520 U.S. 154, 177 (1997). And if a party timely provides comments urging the agency to reconsider an otherwise-final rule, the doctrine of incurable prematurity makes the rule non-final as to that party until the agency rejects its comments. See, e.g., Clifton Power Corp. v. FERC, 294 F.3d 108, 110–11 (D.C. Cir. 2002). Thus, we are unaware of any legal rule that directs parties to presume that an agency will unlawfully ignore its well-taken comment. Rather, the incurable- prematurity doctrine directs parties to comment; wait until that comment is _____________________ 3 Accordingly, we need not pass on the States’ alternative argument that § 6306(b)(1) is a claims-processing rule, not a jurisdiction-stripping provision, or that the incurable prematurity doctrine made the otherwise final rule nonfinal as to the States. Whether or not the rule is jurisdictional, the States satisfied it. And the incurable prematurity doctrine does not apply because the States’ petition was timely under the plain text of § 6306(b)(1). 17 Case: 24-60529 Document: 99-1 Page: 18 Date Filed: 08/11/2026 No. 24-60529 rejected; and then petition for judicial review. The Department offers no reason to think Congress meant to abrogate the incurable-prematurity doctrine when it enacted § 6295(p)(4). Moreover, even if we could stomach the Department’s comment-and-simultaneously-contest approach, that would allow the Department to shorten the comment period from 110 days to 60. Congress gave members of the public 110 days to comment—and to seek judicial review when the Department unlawfully ignores valid comments. The Department cannot overrule that choice and force American citizens to file their comments and petitions in only 60 days. Second, the Department compares this case to Milice v. Consumer Product Safety Commission, 2 F.4th 994 (D.C. Cir. 2021). In Milice, the court held that a DFR was “promulgat[ed]” on the day it was published, that a 60- day deadline to petition began running on that date, and that a later-filed petition was untimely. Id. at 1000–02. The Department urges us to follow the same approach here. To understand why Milice is not persuasive, you first must understand the unconventional scheme at issue in that case. Milice involved the Consumer Product Safety Improvement Act (“CPSIA”). The CPSIA allowed the Consumer Product Safety Commission (“CPSC”) to adopt a safety standard from a private organization called ASTM International. When ASTM International updated its standard, CPSC was allowed to publish a notice in the Federal Register; give the public a chance to comment on the update; and then, barring meaningful objection, update the federal safety standard to reflect the new ASTM International standard. On September 20, 2019, the CPSC published a notice of intent to update its safety standard for infant bath seats, implementing an update by ASTM International. The notice gave the public 30 days to comment on the update; absent negative feedback, the update would go into effect on December 22, 2019. Milice petitioned for review on February 20, 2020, without ever filing 18 Case: 24-60529 Document: 99-1 Page: 19 Date Filed: 08/11/2026 No. 24-60529 a comment. The D.C. Circuit held her petition untimely because it was filed more than 60 days after the September 20 notice. See 15 U.S.C. § 2060(g)(2) (requiring any petition for review to be filed within 60 days of “promulgation”). Milice is distinguishable in numerous ways. First, the CPSC did not shorten a comment period provided by Congress. The Commission gave the public 30 days to comment, and no act of Congress provided a different comment period. Second, no part of the agency’s conduct in Milice was designed to avoid normal notice-and-comment rulemaking. In fact, the CPSC was disabled from publishing the new safety standard for notice and comment by a combination of the CPSIA and the fact that it was incorporating by reference a private organization’s revised safety standard. See Milice, 2 F.4th at 997; 5 U.S.C. § 552(a)(1) (incorporation-by-reference rules); Administrative Conference of the United States, Recommendation 2011-5, Incorporation by Reference, 77 Fed. Reg. 2257 (Dec. 8, 2011). Third, the CPSIA required any would-be petitioner to file within 60 days of the “promulgation” of a new standard. 15 U.S.C. § 2060(g)(2). It’s one thing to say a rule is “promulgated” on the day it’s originally published; it’s an altogether different thing to say a rule is “prescribed” when it is published. 42 U.S.C. § 6306(b)(1). Fourth and finally, the D.C. Circuit suggested that Milice’s petition could have been timely if she had commented as the petitioners did here; if Milice had done that, she could have (and indeed must have) waited until the agency rejected her comment before any petition would have been ripe. Milice, 2 F.4th at 1000–01. So it’s unclear that applying Milice could even help the Department here, since all agree the States filed timely comments opposing the rule. Third, the Department defends reading “prescribed” to mean “published” by pointing to the Second Circuit’s