[Federal Register Volume 88, Number 139 (Friday, July 21, 2023)]
[Proposed Rules]
[Pages 47068-47071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15462]


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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

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Notice of proposed rulemaking and request for comments.

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SUMMARY: The Animal and Plant Health Inspection Service (APHIS) of the 
United States Department of Agriculture is proposing to withdraw a 
final rule that was filed for public inspection by the Office of the 
Federal Register on January 19, 2017, in advance of

[[Page 47069]]

publication, and that amends 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 has indicated that one way to remedy this deficiency is 
to undertake notice and comment procedures on the proposed withdrawal. 
APHIS is therefore proposing to withdraw the 2017 HPA final rule, and 
take public comment on this matter.

DATES: We will consider all comments that we receive on or before 
August 21, 2023.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to www.regulations.gov. 
Enter APHIS-2011-0009 in the Search field. Select the Documents tab, 
then select the Comment button in the list of documents.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2011-0009, Regulatory Analysis and Development, PPD, 
APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-
1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at www.regulations.gov or in our reading room, which is 
located in Room 1620 of the USDA South Building, 14th Street and 
Independence Avenue SW, Washington, DC. Normal reading room hours are 8 
a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure 
someone is there to help you, please call (202) 799-7039 before coming.

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; [email protected]; 
(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) 
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 https://www.ecfr.gov/current/title-9/chapter-I/subchapter-A/part-11.
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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 https://www.regulations.gov/docket/APHIS-2011-0009.
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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).\3\ That rule was filed for public 
inspection, in advance of publication, on January 19, 2017. However, on 
January 20, 2017, the Chief of Staff of the President issued a 
memorandum instructing Federal agencies to immediately withdraw all 
regulations awaiting publication at the OFR.\4\ In response to the 
memorandum, the 2017 HPA final rule, which was on public inspection 
(and available on the Federal Register website, 
www.federalregister.gov), was withdrawn from publication by USDA on 
January 23, 2017, the first business day following January 20, 2017.
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    \3\ We are making a copy of the 2017 HPA final rule available as 
a supporting document for this proposed withdrawal. To obtain a 
copy, go to www.regulations.gov, and enter APHIS-2011-0009 in the 
Search field, or contact the person listed under FOR FURTHER 
INFORMATION CONTACT.
    \4\ To view the memorandum, go to https://trumpwhitehouse.archives.gov/presidential-actions/memorandum-heads-executive-departments-agencies/.
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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 
reversed and remanded a lower court decision granting USDA's motion to 
dismiss, holding 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.'' 54 F.4th 733, 734.
    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.
    APHIS will not be able to promulgate a new HPA rule within 6 
months. Executive orders and USDA Departmental guidance regarding the 
regulatory process impose procedural steps for that new rule, including 
the preparation of supporting documentation, that USDA estimates will 
take materially longer to complete. Moreover, for the other reasons 
described below, APHIS has opted to engage in notice and comment 
rulemaking on the withdrawal.

[[Page 47070]]

    In a document \5\ published in the Federal Register on December 13, 
2021 (86 FR 70755; Docket No. APHIS-2011-0009) (the 2021 withdrawal), 
APHIS withdrew the July 26, 2016 proposed rule on which the 2017 HPA 
final rule was based. In that 2021 withdrawal, we articulated our 
reasons for withdrawing the proposed rule. Those reasons remain 
relevant for our now proposing to withdraw the 2017 HPA final rule.
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    \5\ To view the withdrawal, go to https://www.regulations.gov/document/APHIS-2011-0009-11188.
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    In the 2021 withdrawal, we stated that the National Academy of 
Sciences (NAS) reviewed methods for detecting soreness in horses and 
published a report of their findings in 2021.\6\ The report examined 
the inspection methods that DQPs use for identifying soreness in 
walking horses, new and emerging approaches for detecting pain, and use 
of the scar rule in determining compliance with the HPA, and made a 
number of science-based recommendations regarding revisions to APHIS' 
HPA program and associated regulations. We stated that we had reviewed 
the July 26, 2016 proposed rule in light of the NAS report, and 
determined that the proposed rule did not sufficiently address the 
report's findings.
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    \6\ A Review of Methods for Detecting Soreness in Horses. 
Washington, DC: The National Academies Press. https://doi.org/10.17226/25949.
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    We also stated that, because 5 years had elapsed since the issuance 
of the proposed rule, the underlying data and analyses that supported 
the proposed rule likely need to be updated.
    Additionally, we stated that it was our intent to issue a new 
proposed rule that would incorporate more recent findings and 
recommendations, including the NAS report.
    The above reasons are relevant in 2023 and, indeed, have become 
even more pronounced. A draft of the new proposed HPA rule was accepted 
by the Office of Management and Budget on September 2, 2022, and is 
currently under review. The 2017 HPA final rule did not provide for 
inspection of horses by APHIS employees as an alternative to inspection 
by third-party inspectors who have to be trained and licensed by APHIS, 
despite concerns from commenters that inspectors that meet APHIS' 
criteria could be prohibitively expensive for small shows. It is APHIS' 
intent, as stated in the Spring 2023 Unified Regulatory Agenda, to make 
such allowance in the new proposed rule.
    Therefore, consistent with the 2021 withdrawal of the July 2016 
proposed rule, we are proposing also to withdraw the 2017 HPA final 
rule to avoid regulatory whiplash--i.e., allowing a new (yet outdated) 
regulation to go into effect that would be subject to change, within a 
short period of time, by yet another rulemaking. Maintaining the status 
quo while going forward with the new proposed HPA rule will avoid 
regulatory confusion for both the industry and the public. 
Additionally, allocating resources towards implementing regulations 
that were developed without the benefit of consideration of the recent 
NAS report's findings, as well as recent inspection data, would hamper 
APHIS' current efforts to modernize the horse protection regulations.
    Accordingly, we are proposing to withdraw the 2017 HPA final rule, 
and are requesting public comment on our proposed withdrawal. Comments 
shall be considered relevant to the proposed withdrawal to the extent 
that they articulate reasons for or against the withdrawal. To that 
end, we are making a copy of the 2017 HPA final rule available as a 
supporting document for this proposed withdrawal (see footnote 3).
    Following the comment period, APHIS will publish a subsequent 
action in the Federal Register announcing the Agency's determination 
whether or not to withdraw the 2017 HPA final rule based on the 
comments received.

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 proposing to withdraw a final rule that was filed for 
public inspection, in advance of publication, by the Office of the 
Federal Register on January 19, 2017, and that amends 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 District Court has indicated that one way to remedy 
this deficiency is to undertake notice and comment procedures on the 
proposed withdrawal. APHIS is therefore proposing to withdraw the 2017 
HPA final rule, and take public comment on this matter.
    This proposed withdrawal is an administrative action and in 
intended to support the withdrawal of the 2017 HPA final rule. This 
action would 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 such impacts. In addition, 
APHIS is in the process of developing new regulations that would 
provide protections to the regulated horses. In addition, this new 
amendments to the Horse Protection regulations would incorporate the 
findings of a 2021 National Academy of Sciences (NAS) study that 
examined methods used to inspect horses for soreness. This NAS study 
was published after the 2017 HPA rule.

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 proposed 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

[[Page 47071]]

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 would withdraw a final rule that the Agency 
never implemented or enforced.

Paperwork Reduction Act

    This proposed 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 17th day of July 2023.
Jennifer Moffitt,
Undersecretary, Marketing and Regulatory Programs, USDA.
[FR Doc. 2023-15462 Filed 7-20-23; 8:45 am]
BILLING CODE 3410-34-P