74336 Federal Register / Vol. 88, No. 209 / Tuesday, October 31, 2023 / Rules and Regulations 

with EAATM Program funds again by 

another eligible domestic user. 

§ 870.13 Records and inspection. 

(a) Required records. The eligible 

domestic user shall maintain all records 

and reports relating to their Upland 

Cotton Domestic User Agreement for a 

period of three years following 

termination of the Agreement. At a 

minimum, records must include those 

listed in paragraphs (a)(1) through (6) of 

this section. 

(1) A monthly consumption record 

including a detailed list of bales 

consumed, showing the bale numbers, 

net weights, date received, date 

consumed, type of eligible upland 

cotton, and a facility identifier. The 

consumption record must be 

accompanied by source documents such 

as purchase orders and invoices to 

verify the information provided. 

(2) Documentation supporting the 

receiving of cotton, including a register 

of contracts, amendments, and 

cancellations. Records must show the 

number of bales received each month by 

type of cotton, supported by invoices or 

waybills and weight sheets 

documenting the net weight when 

received at the user’s facility. 

(3) Documentation tracing the 

consumed bale weight back to source 

documents showing the documented 

bale weight received at the user’s 

facility. 

(4) Documentation supporting the 

acquisition, consumption, and 

disposition of ineligible cotton and 

other textiles. 

(5) A bale inventory record that 

summarizes, at least monthly, the 

eligible domestic user’s beginning 

inventory, receipts, adjustments, 

consumption, and ending inventory. 

(6) Documentation of capital 

expenditures that are equal to or greater 

than payments received. 

(i) The eligible domestic user must 

record information about capital 

expenditures in a supplemental ledger 

as defined in § 870.2, including, but not 

limited to, detailed descriptions of each 

capital expenditure, acquisition date, 

date of payment, amount of payment, 

and proof of payment, serial number(s), 

invoice number, and location 

(applicable facility). 

(ii) Capital expenditures must be 

grouped by Marketing Year. 

(iii) Each line item must reflect only 

a single expense for an identifiable 

single expenditure. 

(b) Inspection of records. (1) Upon 

request from WCMD, the eligible 

domestic user must forward to WCMD 

copies of any and all records which 

support the domestic user’s claims for 

payment. 

(2) Eligible domestic users must make 

records available at all reasonable times 

for an audit or inspection by authorized 

representatives of AMS, the United 

States Department of Agriculture, and/ 

or any other governmental unit needing 

access for audit or inspection purposes. 

(3) Eligible domestic users shall 

permit, and assist without impediment, 

any AMS-authorized individual to 

inspect or audit, on any business day 

during the normal and customary hours 

of business, the books, papers, records, 

accounts, and other applicable 

documents relating to the Agreement. 

Failure to provide access or respond 

timely to requests for information and 

records will result in denial of benefits. 

§ 870.15 Compliance, enforcement, and 

appeals. 

(a) AMS will notify the appropriate 

investigating agencies of the United 

States and CCC may terminate the 

Agreement and demand a full refund of 

payments plus interest and suspend and 

debar the offending company from 

further government participation as 

deemed necessary to protect the 

interests of the government, if the 

eligible domestic user is suspected by 

AMS to have knowingly: 

(1) Adopted any scheme or device 

which violates the Agreement; 

(2) Made any fraudulent 

representation; or 

(3) Misrepresented any fact affecting a 

determination under the Agreement. 

(b) No Member or Delegate of 

Congress shall be admitted to any share 

or part of the Agreement or to any 

benefit to arise therefrom, except that 

this provision shall not be construed to 

extend to their interest in any 

incorporated company, if the Agreement 

is for the general benefit of such 

company, nor shall it be construed to 

extend to any benefit which may accrue 

to such official in their capacity as a 

party to an Agreement. 

(c) Eligible domestic users who 

dispute a WCMD program 

administration decision may request a 

review of the decision by the Director. 

(1) Requests for review must be in 

writing and contain the relevant facts 

upon which the review will be heard. 

Requests must be received by WCMD 

within 15 days from the date the eligible 

domestic user receives the disputed 

decision. 

(2) Requests must be directed to: 

Director, Warehouse and Commodity 

Management Division, Agricultural 

Marketing Service, U.S. Department of 

Agriculture, at EAATM.ELS@usda.gov. 

(d) 7 CFR 2.79(a)(23) authorizes the 

AMS Administrator to administer the 

EAATM program (7 U.S.C. 9037(c)). In 

light of the aforementioned 

redelegation, AMS is considered a 

successor ‘‘Agency’’ under 7 CFR 11.1, 

and decisions made under EAATM, if 

deemed adverse, are subject to NAD 

jurisdiction. Accordingly, appeals under 

this program shall be heard by the 

USDA National Appeals Division. 

(e) Eligible domestic users who 

dispute a review decision by the 

Director must appeal such decision to 

the USDA National Appeals Division 

pursuant to 7 U.S.C. 6912(e) and 7 CFR 

11. Such an appeal must be made 

within 30 days of receipt of a WCMD 

decision. 

(f) CCC may terminate the Upland 

Cotton Domestic User Agreement at any 

time. 

(g) When a new Agreement is 

executed for any reason, including but 

not limited to programmatic 

requirements, expiration of authorizing 

legislation, or exhaustion of funds, any 

previous Agreement between CCC and 

the eligible domestic user shall be null 

and void/terminated. 

(h) The Director may waive or modify 

deadlines and other program 

requirements in cases where timeliness 

or failure to meet such other 

requirements does not adversely affect 

the operation of the program. 

Erin Morris, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2023–23727 Filed 10–30–23; 8:45 am] 

BILLING CODE 3410–02–P 

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. 

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, 


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1To view the regulations, go to https://

www.ecfr.gov/current/title-9/chapter-I/subchapterA/part-11. 

2To view the 2016 proposed rule, its supporting 

documents, and the comments that we received, go 

to https://www.regulations.gov/docket/APHIS-2011- 

0009. 

3To view the memorandum, go to https://

trumpwhitehouse.archives.gov/presidential-actions/ 

memorandum-heads-executive-departmentsagencies/. 

4To view the notice of proposed rulemaking on 

the proposed withdrawal, its supporting 

documentation, and the comments that we 

received, go to https://www.regulations.gov/docket/ 

APHIS-2011-0009. 

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; 

aaron.a.rhyner@usda.gov; (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

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. 

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, 

www.federalregister.gov), was 

withdrawn from publication by USDA 

on January 23, 2017, the first business 

day following January 20, 2017. 

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. 

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 nonVerDate Sep<11>2014 16:38 Oct 30, 2023 Jkt 262001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\31OCR1.SGM 31OCR1

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74338 Federal Register / Vol. 88, No. 209 / Tuesday, October 31, 2023 / Rules and Regulations 

5To view the proposed rule, supporting 

documentation, and the comments that we have 

received, go to https://www.regulations.gov/docket/ 

APHIS-2022-0004. 

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 preexisting 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. 

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 


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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. 


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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 thirdparty 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. 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 88, No. 209 / Tuesday, October 31, 2023 / Rules and Regulations 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 costbenefit 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 governmentto-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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