Rule2023-23938
Horse Protection; Licensing of Designated Qualified Persons and Other Amendments; Withdrawal
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 31, 2023
Effective
November 30, 2023
Issuing agencies
Agriculture DepartmentAnimal and Plant Health Inspection Service
Abstract
The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA) is withdrawing a final rule that was filed for public inspection by the Office of the Federal Register on January 19, 2017, in advance of publication, amending the Agency's Horse Protection Act regulations (the 2017 HPA final rule). On January 23, 2017, APHIS withdrew the 2017 HPA final rule from publication without undertaking notice and comment procedures, in accordance with a memorandum that was issued by the Executive Office of the President on January 20, 2017. However, following a lawsuit, the U.S. Court of Appeals for the District of Columbia Circuit found this withdrawal to be deficient. The District Court subsequently ordered that USDA could remedy this deficiency by undertaking notice and comment procedures on the proposed withdrawal. APHIS therefore issued a notice of proposed rulemaking to withdraw the 2017 HPA final rule, and we are finalizing that withdrawal based on the comments received.
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<title>Federal Register, Volume 88 Issue 209 (Tuesday, October 31, 2023)</title>
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[Federal Register Volume 88, Number 209 (Tuesday, October 31, 2023)]
[Rules and Regulations]
[Pages 74336-74341]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23938]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 11
[Docket No. APHIS-2011-0009]
RIN 0579-AE76
Horse Protection; Licensing of Designated Qualified Persons and
Other Amendments; Withdrawal
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule; withdrawal.
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SUMMARY: The Animal and Plant Health Inspection Service (APHIS) of the
United States Department of Agriculture (USDA) is withdrawing a final
rule that was filed for public inspection by the Office of the Federal
Register on January 19, 2017, in advance of publication,
[[Page 74337]]
amending the Agency's Horse Protection Act regulations (the 2017 HPA
final rule). On January 23, 2017, APHIS withdrew the 2017 HPA final
rule from publication without undertaking notice and comment
procedures, in accordance with a memorandum that was issued by the
Executive Office of the President on January 20, 2017. However,
following a lawsuit, the U.S. Court of Appeals for the District of
Columbia Circuit found this withdrawal to be deficient. The District
Court subsequently ordered that USDA could remedy this deficiency by
undertaking notice and comment procedures on the proposed withdrawal.
APHIS therefore issued a notice of proposed rulemaking to withdraw the
2017 HPA final rule, and we are finalizing that withdrawal based on the
comments received.
DATES: This withdrawal is effective November 30, 2023.
FOR FURTHER INFORMATION CONTACT: Dr. Aaron Rhyner, DVM, Assistant
Director, USDA-APHIS-Animal Care, 2150 Centre Ave., Building B,
Mailstop 3W11, Fort Collins, CO 80526-8117; <a href="/cdn-cgi/l/email-protection#117070637e7f3f703f6379687f746351646275703f767e67"><span class="__cf_email__" data-cfemail="254444574a4b0b440b574d5c4b405765505641440b424a53">[email protected]</span></a>;
(970) 494-7484.
SUPPLEMENTARY INFORMATION: Under the Horse Protection Act (HPA, or the
Act, 15 U.S.C. 1821 et seq.), the Secretary of Agriculture is
authorized to promulgate regulations to prohibit the movement, showing,
exhibition, or sale of sore horses.
The Secretary has delegated responsibility for administering the
Act to the Administrator of the U.S. Department of Agriculture's
(USDA's) Animal and Plant Health Inspection Service (APHIS). Within
APHIS, the responsibility for administering the Act has been delegated
to the Deputy Administrator for Animal Care. Regulations and standards
established under the Act are contained in 9 CFR part 11 (referred to
below as the regulations), and 9 CFR part 12 lists the rules of
practice governing administrative proceedings.\1\
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\1\ To view the regulations, go to <a href="https://www.ecfr.gov/current/title-9/chapter-I/subchapter-A/part-11">https://www.ecfr.gov/current/title-9/chapter-I/subchapter-A/part-11</a>.
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On July 26, 2016, APHIS published in the Federal Register (81 FR
49112-49137, Docket No. APHIS-2011-0009) a proposal \2\ to amend the
regulations. Primarily, APHIS proposed to discontinue third-party
training and oversight of Designated Qualified Persons, or DQPs, who
inspect regulated horses for evidence of soring. Instead, we proposed
all inspectors would have to be trained and licensed by APHIS. The rule
also proposed several changes to the requirements that pertain to the
management of horse shows, exhibitions, sales, and auctions, as well as
changes to the list of devices, equipment, substances, and practices
that are prohibited to prevent the soring of horses. Finally, we
proposed to revise the inspection procedures that inspectors are
required to perform.
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\2\ To view the 2016 proposed rule, its supporting documents,
and the comments that we received, go to <a href="https://www.regulations.gov/docket/APHIS-2011-0009">https://www.regulations.gov/docket/APHIS-2011-0009</a>.
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We solicited public comments on the proposal and received 130,975
submissions, as well as comments provided at 5 listening sessions.
After APHIS reviewed the comments, on January 11, 2017, we submitted a
final rule to the Office of the Federal Register (OFR) for publication
(the 2017 HPA final rule). That rule was filed for public inspection,
in advance of publication, on January 19, 2017. However, on January 20,
2017, the Executive Office of the President issued a memorandum
instructing Federal agencies to immediately withdraw all regulations
awaiting publication at the OFR.\3\ In response to the memorandum, the
2017 HPA final rule, which was filed for public inspection (and
available on the Federal Register website, <a href="http://www.federalregister.gov">www.federalregister.gov</a>),
was withdrawn from publication by USDA on January 23, 2017, the first
business day following January 20, 2017.
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\3\ To view the memorandum, go to <a href="https://trumpwhitehouse.archives.gov/presidential-actions/memorandum-heads-executive-departments-agencies/">https://trumpwhitehouse.archives.gov/presidential-actions/memorandum-heads-executive-departments-agencies/</a>.
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In August 2019, the Humane Society of the United States (HSUS) and
other non-governmental organizations sued USDA. HSUS argued that the
2017 HPA final rule had been duly promulgated and could not be
withdrawn without first providing public notice in the Federal Register
and an opportunity for public comment. On July 22, 2022, the Court of
Appeals for the D.C. Circuit held that ``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.'' Humane Soc'y of the U.S. v. U.S. Dep't of Agric., 41 F.4th
564, 565 (D.C. Cir. 2022). In remanding the case to the lower court,
the Court of Appeals clarified that ``[o]n remand, the district court
may consider all remedial issues, including the question of whether
remand to the agency without vacatur is appropriate under the criteria
established by Circuit precedent.'' Humane Soc'y of the U.S. v. U.S.
Dep't of Agric., 54 F.4th 733, 734 (D.C. Cir. 2022).
On May 12, 2023, the District Court issued its decision on remand.
Humane Soc'y of the U.S. v. U.S. Dep't of Agric., No. 19-cv-2458 BAH,
2023 WL 3433970 (D.D.C. May 12, 2023). The Court remanded the
withdrawal of the 2017 HPA final rule to APHIS without vacatur, but
ordered that the withdrawal of the 2017 HPA final rule would be vacated
in 120 days if the agency failed to take appropriate remedial action
before then. The Court indicated that USDA could attempt to promulgate
a new HPA rule or ``remedy the deficiency in the withdrawal of [the
2017 HPA final rule] by conducting notice and comment on the
withdrawal.'' 2023 WL 3433970, at *14. On May 23, 2023, APHIS requested
that the Court extend the deadline for action from 120 days to 180 days
and the court granted that request on June 1, 2023.
On July 21, 2023, we published a notice of proposed rulemaking for
the proposed withdrawal \4\ of the 2017 HPA final rule (``notice of
proposed rulemaking'') in the Federal Register (88 FR 47068-47071,
Docket No. APHIS-2011-0009). In that notice of proposed rulemaking, we
cited several bases for the proposal to withdraw the 2017 HPA final
rule. First, the National Academy of Sciences (NAS) reviewed methods
for detecting soreness in horses and published a report of their
findings in 2021, and we determined that the 2017 HPA final rule did
not sufficiently address the report's findings. Second, a significant
period of time had elapsed since the 2017 HPA final rule was issued,
and the underlying data and analyses that supported the rule likely
needed to be updated. Third, it was our intent to issue a new proposed
rule (``new proposed HPA regulations'') that would incorporate more
recent findings and recommendations, including the NAS report, and the
new proposed HPA regulations were then under review by the Office of
Management and Budget (OMB) pursuant to Executive Order 12866. Finally,
withdrawing the 2017 HPA final rule would avoid regulatory whiplash by
having the final rule go into effect only to have it subject to change,
within a relatively short period of time, by another rulemaking.
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\4\ To view the notice of proposed rulemaking on the proposed
withdrawal, its supporting documentation, and the comments that we
received, go to <a href="https://www.regulations.gov/docket/APHIS-2011-0009">https://www.regulations.gov/docket/APHIS-2011-0009</a>.
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We solicited comments concerning our notice of proposed rulemaking
for 30 days, ending August 21, 2023.
We received 22,971 unique submissions comprising 114,994 comments
by the close of the comment period. They were from non-
[[Page 74338]]
governmental organizations; national organizations representing
veterinarians, equine practitioners, and equestrian interests; a State
farm bureau; former and current judges of walking horse shows; former
walking horse inspectors; and private citizens.
Below, we discuss the comments that we received, by topic.
Comments Suggesting We Implement the 2017 HPA Final Rule Rather Than
Pursue New Proposed HPA Regulations
We received a number of comments that suggested we implement the
2017 HPA final rule rather than withdraw that rule and proceed with new
proposed HPA regulations.
Many commenters stated that the HPA final rule included protections
to preclude sore horses from being shown or exhibited that do not exist
in the current regulations, and therefore should be implemented. For
example, several commenters pointed out that the 2017 HPA final rule
had restrictions and prohibitions specific to the Tennessee Walking and
Racking Horse (TWH) industry that are not found in the current
regulations.
We agree that the 2017 HPA final rule is preferable to the current
regulations, but consider the new proposed HPA regulations to be
preferable to the 2017 HPA final rule for reasons discussed in the
notice of proposed rulemaking regarding the withdrawal of the 2017 HPA
final rule and in this document. Additionally, allowing the 2017 HPA
final rule to go into effect would have a significant adverse effect on
the new proposed HPA regulations that we wish to avoid; we discuss this
at greater length later in this document.
A number of commenters stated that it would be easier and quicker
for the Agency to allow the 2017 HPA final rule to go into effect than
to proceed with new proposed HPA regulations.
Even if allowing the 2017 HPA final rule to go into effect were
easier and quicker, we consider the new proposed HPA regulations to be
preferrable to the 2017 HPA final rule for reasons discussed in the
notice of proposed rulemaking regarding the withdrawal of the 2017 HPA
final rule and this document.
A commenter stated that the 2017 HPA final rule should not be
withdrawn because it prohibited the use of chemicals and devices
associated with soring.
Section 11.2 of the current regulations already prohibits the use
of chemicals associated with soring, as well as the devices mentioned
by the commenter.
Finally, a commenter stated that the 2017 HPA final rule should not
be withdrawn because, in its absence, there would be none of the
current protections in place against allowing sore horses to be shown
or exhibited.
The commenter appears to mistakenly believe that we proposed
withdrawal of the HPA regulations in their entirety, rather than
withdrawal of the 2017 HPA final rule that revised the existing HPA
regulations. Because the existing HPA regulations are not affected by
the withdrawal, the current protections will remain in place, and this
is not a reason to refrain from withdrawing the 2017 HPA final rule.
Comments Suggesting We Implement the 2017 HPA Final Rule While the
Rulemaking Process for New Proposed HPA Regulations Are Underway
As noted above, one of our stated reasons for proposing to withdraw
the 2017 HPA final rule was to avoid regulatory whiplash associated
with implementing that rule, only to have it subject to change, within
a relatively short period of time, by another rulemaking.
Several commenters disagreed with this position.
One commenter stated that issuing new proposed HPA regulations does
not preclude the agency from subsequently implementing the 2017 HPA
final rule after the new proposed HPA regulations are published and
proceed through the rulemaking process.
While the publication of new proposed HPA regulations \5\ on August
21, 2023 (88 FR 56924-56962, Docket No. APHIS-2022-0004) does not
necessarily preclude APHIS from implementing the 2017 HPA final rule,
as we stated in the notice of proposed rulemaking regarding the
withdrawal of the 2017 HPA final rule and further elaborate on in this
document, we would prefer not to implement a rule that is based on
outdated data. Moreover, implementing the 2017 HPA final rule would
substantially adversely impact the new proposed HPA regulations. The
new proposed HPA regulations were drafted as a complete revision of the
existing HPA regulations, meaning that, the new proposed HPA
regulations do not propose to amend the regulations as set forth in the
2017 HPA final rule but instead propose to amend the regulations that
were in place before the 2017 HPA final rule. Thus, allowing the 2017
HPA final rule to become the current HPA regulations would
fundamentally and unnecessarily shift the regulatory scheme on which
the new proposed HPA regulations are predicated. As one commenter
opined, APHIS would thus have to withdraw, substantially revise, and
repropose the new proposed HPA regulations were the 2017 HPA final rule
implemented. We agree that either withdrawal or a new regulatory
action, such as a supplemental proposal, would be warranted.
Specifically, we would have to revise the amendatory instructions and
regulatory text of the new proposed HPA regulations--which do not refer
to the 2017 HPA final rule or otherwise take that rule and its changes
to the pre-existing regulatory landscape into account--to comport with
the structure of the regulations in the 2017 HPA final rule, and allow
for public comment on this revised regulatory text. This additional
regulatory action would significantly extend the timelines for any
possible finalization of the new proposed HPA regulations, and any
withdrawal or substantive modification to the new proposed HPA
regulations heightens the likelihood of confusion regarding the
Agency's intent. This likelihood of confusion is underscored by the
comments on the notice of proposed rulemaking regarding the withdrawal
itself, many of which interpreted the proposed withdrawal of the 2017
HPA final rule as indicating an intent not to issue new HPA regulations
despite the stated intent in the notice of proposed rulemaking to do
so.
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\5\ To view the proposed rule, supporting documentation, and the
comments that we have received, go to <a href="https://www.regulations.gov/docket/APHIS-2022-0004">https://www.regulations.gov/docket/APHIS-2022-0004</a>.
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One commenter stated that regulatory whiplash would not occur
because it would take a significant amount of time to finalize the new
proposed HPA regulations. Another commenter stated that regulatory
whiplash would not occur because the horse industry could easily adjust
to regulatory changes.
As noted above, implementing the 2017 final rule would
substantially adversely impact the new proposed HPA regulations, and
trigger the need for regulatory actions to withdraw or modify it. For
this reason, we disagree with the commenters that regulatory whiplash
will not occur if the new proposed HPA regulations takes significantly
longer than anticipated to finalize. Rather, it is the Agency's
position that any such withdrawal or modification to the new proposed
HPA regulations is likely to result in confusion regarding the Agency's
intent, and thus actual or perceived regulatory whiplash.
We also disagree that the 2017 HPA final rule could quickly be
implemented. We note that most of the sections in the 2017 HPA final
rule would have had an effective date of January 1, 2018, that is,
about 1 year
[[Page 74339]]
after the date it was placed on public inspection. This was done out of
recognition that there were aspects of the rule that were dependent on
other aspects, such as the need to implement a process for Agency
training of new third-party inspectors before the inspectors could be
appointed to shows and exhibitions, and the rule therefore could not be
immediately implemented. We also note that the final rule indicated
that one of the provisions of the final rule, a prohibition on the use
of pads by Tennessee Walking Horses (TWHs) ``would be harmful to some
horses currently on high pads . . . without a phasing-in period,'' and
indicated that the January 1, 2018 effective date was chosen in part to
ensure this phasing-in period could occur.
Finally, several commenters stated that we could implement the 2017
HPA final rule, and then issue new proposed HPA regulations proposing
any additional revisions to the regulations that were necessary.
This was an option before the Agency; however, as noted in the
notice of proposed rulemaking regarding the withdrawal of the 2017 HPA
final rule, we had reservations about implementing a rule that relied
on underlying data and analyses that were at least 7 years old. Indeed,
as several commenters noted, the preponderance of data in support of
the 2017 HPA final rule was from 2011 or prior, and not necessarily
indicative of current industry practices. One of these commenters also
noted that the age of the data could present a possible legal
vulnerability in the event of litigation by the industry. Accordingly,
we preferred to withdraw the 2017 HPA final rule in favor of new
proposed HPA regulations that would completely revise the existing HPA
regulations and would be based on the most up-to-date data, including
that in the NAS report.
Comments Regarding Issuance of the New Proposed HPA Regulations
Many commenters urged us to finalize the new proposed HPA
regulations referenced in the notice of proposed rulemaking regarding
the withdrawal of the 2017 HPA final rule as expeditiously as possible,
and that the proposed withdrawal of the 2017 HPA final rule should not
be finalized until the new proposed HPA regulations are issued. Several
commenters stated that the 2016 proposed rule on which the 2017 HPA
final rule was based should be reissued until new proposed HPA
regulations are issued, while others stated that, if new proposed HPA
regulations could not be issued expeditiously, the 2017 HPA final rule
should go into effect instead. A number of commenters stated that APHIS
was not intent on issuing new HPA regulations, with some citing the
length of time they had been under OMB review as purported evidence of
this. Finally, many commenters pointed out that APHIS did not provide a
timeline for issuance of new HPA regulations.
These comments have all been overtaken by the fact that the new
proposed HPA regulations have been published. As we noted above, the
new proposed HPA regulations were published in the Federal Register on
August 21, 2023.
Comments Regarding Finalization of the New Proposed HPA Regulations
Several commenters stated that the 2017 HPA final rule should not
be withdrawn until the new proposed HPA regulations are finalized.
As noted previously in this document, the District Court afforded
APHIS 180 days, or until November 8, 2023, to remedy the deficiency in
its previous withdrawal of the 2017 HPA final rule. APHIS has remedied
that deficiency by providing notice and opportunity for public comment
on the proposed withdrawal and, based on the comments received, making
this determination to withdraw the 2017 HPA final rule. Whereas the
deadline to undertake this rulemaking process is November 8, 2023, the
comment period for the new proposed HPA regulations ended on October
20, 2023. It is not possible to fulfill the legal and procedural
requirements associated with issuance of a final regulatory action
regarding the new proposed HPA regulations--which include reviewing and
responding to all issues raised by commenters, as well as revising
supplemental documentation, as warranted, and clearing the final action
and documentation through the appropriate offices--in the 19 days
between October 20, 2023, and November 8, 2023.
A commenter stated that the withdrawal of the 2017 HPA final rule
should only be finalized before the new proposed HPA regulations are
finalized if legally or procedurally necessary.
As noted above, it will be legally necessary to publish a final
determination on the proposed withdrawal of the 2017 HPA final rule
before we can take any subsequent regulatory action regarding the
comments on the new proposed HPA regulations.
A number of commenters urged us to finalize and implement a final
rule resulting from the new proposed HPA regulations as expeditiously
as possible. Several of the commenters stated that, if this were not to
occur, the withdrawal of the 2017 HPA final rule would possibly be in
violation of the Administrative Procedure Act (APA). Specifically, they
stated that the withdrawal could be found unlawful pursuant to 5 U.S.C.
706(2)(A). (This section of the APA provides that a reviewing court
shall hold unlawful and set aside agency action that is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
the law.) In their estimation, APHIS provided no evidence that the 2017
HPA final rule was without foundation or otherwise inadequate, and thus
the basis for the withdrawal was predicated solely on the issuance,
finalization, and implementation of the new proposed HPA regulations.
We note that the commenters urged us to finalize the new proposed
HPA regulations irrespective of the comments received on the proposed
rule; the APA precludes us from doing so.
Additionally, we disagree with the commenters that the proposed
withdrawal did not articulate concerns with the foundation for the 2017
HPA final rule; as noted above, we stated that the underlying data and
analyses in support of the final rule were outdated and without the
benefit of the recent NAS report's findings or recent inspection data.
We further noted that allocating resources towards implementing
outdated regulations would hamper APHIS' efforts to modernize the horse
protection regulations. We also agree with a commenter who stated that
the age of the data could present a possible legal vulnerability in the
event of litigation by the industry.
Finally, while it is APHIS' intent to act as promptly as possible
regarding the new proposed HPA regulations, we note that there are
legal and procedural requirements that we must follow regarding any
regulatory action. This includes, but is not limited to, the need for
fulsome review of the comments received to fulfill the requirements of
the APA; the need to review, and, as necessary, revise supporting
documentation in response to comments; and the need to comply with
Executive Orders governing the regulatory process. We also note that we
have never claimed that a complete revision to the existing HPA
regulations could be immediately implemented; as noted above, the 2017
HPA final rule afforded nearly a year between when it was placed on
public inspection and when it would have been effective.
[[Page 74340]]
Comments Regarding the 2017 HPA Final Rule's Consistency With the NAS
Report
As noted above, one of our stated reasons for proposing to withdraw
the 2017 HPA final rule was that we had reviewed the 2017 HPA final
rule in light of the NAS report, and determined that the rule did not
sufficiently address the report's findings.
One commenter disagreed and stated that, having watched discussions
regarding the drafting of the report and having reviewed the report,
the commenter was certain it was entirely consistent with the
provisions of the 2017 HPA final rule. Other commenters stated that the
report recommended revising the ``scar rule,'' which the 2017 HPA final
rule did not propose to do, and that new proposed HPA regulations would
indeed be needed to incorporate all of the report's recommendations.
We agree with the latter commenters; the former commenter is in
error about the report's consistency with the 2017 HPA final rule for
the reasons the latter commenters articulated.
Comments Requesting That the New Proposed HPA Regulations Retain
Certain Provisions of the 2017 HPA Final Rule
A number of commenters cited provisions of the 2017 HPA final rule
that, they stated, should be retained in the new proposed HPA
regulations if APHIS were to withdraw the 2017 HPA final rule.
Several commenters stated the new proposed HPA regulations should
also propose to relieve horse industry organizations, or HIOs, of all
regulatory responsibilities for approving and training third-party
inspectors.
The new proposed HPA regulations propose to relieve HIOs of such
responsibilities.
A commenter stated that the new proposed HPA regulations should
also contain clear criteria for being a third-party inspector, as well
as a process for denying an application to be an inspector.
The new proposed HPA regulations do contain such criteria and such
a process.
A commenter stated that the new proposed HPA regulations should
also propose to limit third-party inspectors to veterinarians and other
individuals with knowledge of the equine industry who had been screened
for possible conflicts of interests.
The new proposed HPA regulations do so.
A commenter stated that the new proposed HPA regulations should
also propose to require horse show management to pay for inspectors.
The new proposed HPA regulations do so, provided that management
elects to use third-party inspectors. The proposed HPA regulations do
propose to allow inspection directly by APHIS representatives, free of
charge.
Several commenters stated that the new proposed HPA regulations
should also include additional requirements specific to the TWH
industry, which, the commenters stated, has a long history of
documented instances of soring and violations of the regulations.
The new proposed HPA regulations proposes additional requirements
specific to that industry.
A commenter stated that the new proposed HPA regulations should
also prohibit any device, method, practice, or substance that could
mask evidence of soring.
The new proposed HPA regulations propose such a prohibition.
A commenter stated that the new proposed HPA regulations should
contain the reporting requirements specific to the TWH industry that
were contained in the 2017 HPA final rule.
They contain such reporting requirements.
Finally, a number of commenters stated that the new proposed HPA
regulations should retain all key elements of the 2017 HPA final rule,
without further elaborating regarding which elements they considered
``key''.
We believe that they do, insomuch as they further the same purposes
under the HPA.
Comments Seeking To Ensure That the New Proposed HPA Regulations
Include Provisions That the Proposed Withdrawal Represented Would Be
Included in the New Proposed HPA Regulations
Several commenters noted that the notice of proposed rulemaking
regarding the withdrawal of the 2017 HPA final rule stated that the new
proposed HPA regulations would take into consideration the findings of
the NAS report, and asked for assurances that it did in fact do so.
The new proposed HPA regulations do take the NAS report's findings
into consideration.
A number of commenters noted that the NAS report recommended
revisions to the ``scar rule,'' and requested that the new proposed HPA
regulations propose to revise the scar rule consistent with the
report's recommendations.
The new proposed HPA regulations do so.
Finally, one commenter interpreted the notice of proposed
rulemaking regarding the withdrawal of the 2017 HPA final rule to
suggest that the new proposed HPA regulations would allow for
inspection directly by an APHIS representative at no cost to show
management, rather than inspection by a third-party inspector. The
commenter supported this proposed provision and requested that it in
fact be included in the new proposed HPA regulations.
The new proposed HPA regulations contain such a provision.
Comments Requesting Additional Provisions in the New Proposed HPA
Regulations
We also received a number of requests for additional provisions
that were not included in the 2017 HPA final rule, and that we did not
suggest in the proposed withdrawal would be part of the new proposed
HPA regulations.
Several commenters suggested that the new proposed HPA regulations
should prohibit the use of weighted shoes. Other commenters stated that
prohibitions on the use of shoes, pads, wedges, and action devices that
were specific to the TWH industry in the 2017 HPA final rule should
also be extended to the Spotted Saddle Horse industry in the new
proposed HPA regulations. One commenter suggested that the new HPA
regulations should require all inspectors to be trained in evidence of
pain and anxiety in horses, and should include random and targeted
swabbing for use of prohibited chemicals.
We consider these comments to be outside of the scope of the
proposed withdrawal.
With that being said, under current operational practice, APHIS
does train inspectors in noticing evidence of pain and anxiety in
horses, and random and risk-based swabbing for use of prohibited
chemicals does occur.
Miscellaneous
One commenter stated that soring is an inhumane practice, while
another, who owned racking horses, said that they did not need to be
sored in order to produce an elegant gait.
This comment is outside the scope of the notice of proposed
rulemaking regarding the withdrawal of the 2017 HPA final rule. As we
noted in the new proposed HPA regulations, Congress has declared that
the soring of horses is cruel and inhumane. 15 U.S.C. 1822.
A commenter stated that American Quarter Horse Association horses,
Arab horses, American saddlebred horses, and Morgan horses are also
sored prior to competitions.
[[Page 74341]]
This comment is outside the scope of the notice of proposed
rulemaking regarding the withdrawal of the 2017 HPA final rule. We
note, however, that in the new proposed HPA regulations, we invited
public comment on any observations persons may have regarding soring in
breeds other than in the TWH industry.
Several commenters suggested that APHIS should ban all soring of
horses, while other commenters stated that this would be outside the
scope of the HPA, and either new legislation or a revision to the HPA
would be required in order for APHIS to prohibit such practices
unilaterally.
The latter commenters are correct; the HPA does not prohibit the
practice of soring outright but, rather, requires the disqualification
of sore horses from being shown or exhibited, and prohibits them from
being shown or exhibited in any horse show or exhibition; and from
being sold, auctioned, or offered for sale in any horse sale or
auction.
A commenter stated that the Prevent All Soring Tactics Act of 2022
should be issued, while another stated that horse slaughter should be
outlawed.
The issuance of legislation is outside the scope of the notice of
proposed rulemaking regarding the withdrawal of the 2017 HPA final
rule.
A commenter stated that APHIS' Wildlife Services and Animal Care
programs should be abolished, while another stated that the latter
program should receive additional funding for HPA enforcement.
Both comments are outside the scope of the notice of proposed
rulemaking regarding the withdrawal of the 2017 HPA final rule.
A commenter stated that Animal Care should use thermography to
detect signs of inflammation in horses.
This is outside the scope of the notice of proposed rulemaking
regarding the withdrawal of the 2017 HPA final rule. However, we note
that Animal Care uses thermography currently and plans to continue this
use.
A commenter stated that Animal Care should collect blood samples to
test for use of prohibited medications and medications administered
beyond therapeutic levels.
This is outside the scope of the notice of proposed rulemaking
regarding the withdrawal of the 2017 HPA final rule.
A commenter stated that all APHIS regulations should be immediately
withdrawn and rewritten in plain language, using Webster's dictionary
definitions, and maintained on a single government site.
This is outside the scope of the notice of proposed rulemaking
regarding the withdrawal of the 2017 HPA final rule.
Finally, a commenter noted that horses are beautiful animals.
We agree.
Therefore, for the reasons set forth in the proposed withdrawal of
the 2017 HPA final rule and in this document, we are withdrawing the
2017 HPA final rule.
Executive Orders 12866, 13563, and 14094, and the Regulatory
Flexibility Act
This proposed withdrawal has been determined to be significant for
the purposes of Executive Order 12866, as amended by Executive Order
14094, and, therefore, has been reviewed by the Office of Management
and Budget.
We have prepared an economic analysis for this rulemaking. The
economic analysis provides a cost-benefit analysis, as required by
Executive Orders 12866 and 13563, which direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility. The
economic analysis also examines the potential economic effects of this
rulemaking on small entities, as required by the Regulatory Flexibility
Act. The economic analysis is summarized below.
APHIS is withdrawing a final rule that was filed for public
inspection, in advance of publication, by the Office of the Federal
Register on January 19, 2017, amending the Agency's Horse Protection
Act regulations (the 2017 HPA final rule). APHIS withdrew the 2017 HPA
final rule from publication without undertaking notice and comment
procedures on January 23, 2017, in accordance with a memorandum that
was issued by the Executive Office of the President on January 20,
2017. However, following a lawsuit, the U.S. Court of Appeals for the
District of Columbia Circuit found this withdrawal to be deficient. The
U.S. District Court for the District of Columbia has indicated that one
way to remedy this deficiency is to undertake notice and comment
procedures on the proposed withdrawal. Based on the comments received,
APHIS is withdrawing the 2017 HPA final rule.
This withdrawal is an administrative action and is intended to
support the withdrawal of the 2017 HPA final rule, and this action will
not have a significant impact on the affected entities. In the absence
of apparent significant economic impacts, we have not identified
alternatives that would minimize any impacts. In addition, APHIS is in
the process of developing new HPA regulations that would provide
protections to the regulated horses. Also, these new amendments to the
Horse Protection regulations propose to incorporate the findings of a
2021 National Academy of Sciences (NAS) report that examined methods
used to inspect horses for soreness. This NAS report was published
after the 2017 HPA final rule was filed for public inspection.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 2 CFR chapter IV.)
Executive Order 13175
This withdrawal has been reviewed in accordance with the
requirements of Executive Order 13175, ``Consultation and Coordination
with Indian Tribal Governments.'' Executive Order 13175 requires
Federal agencies to consult and coordinate with tribes on a government-
to-government basis on policies that have tribal implications,
including regulations, legislative comments or proposed legislation,
and other policy statements or actions that have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
We have determined that this action does not have tribal
implications, insofar as it withdraws a final rule that the Agency
never implemented or enforced.
Paperwork Reduction Act
This withdrawal contains no reporting or recordkeeping requirements
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Done in Washington, DC, this 23rd day of October 2023.
Jennifer Moffitt,
Undersecretary, Marketing and Regulatory Programs, USDA.
[FR Doc. 2023-23938 Filed 10-30-23; 8:45 am]
BILLING CODE 3410-34-P
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