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[Federal Register Volume 90, Number 17 (Tuesday, January 28, 2025)]
[Rules and Regulations]
[Pages 8253-8254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-01836]

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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 90, No. 17 / Tuesday, January 28, 2025 / 
Rules and Regulations

[[Page 8253]]

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 11

[Docket No. APHIS-2022-0004]
RIN 0579-AE70

Horse Protection Amendments; Postponement of Regulations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule; postponement of regulations.

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SUMMARY: On May 8, 2024, we published a final rule amending the horse 
protection regulations to provide, among other provisions, that the 
Animal and Plant Health Inspection Service will screen, train, and 
authorize qualified persons for appointment by the management of any 
horse show, horse exhibition, or horse sale or auction to detect and 
diagnose soring at such events for the purposes of enforcing the Horse 
Protection Act. With the exception of Sec.  11.19, which went into 
effect on June 7, 2024, the remainder of the rule was scheduled to go 
into effect on February 1, 2025. In this document, we are issuing a 
temporary postponement of the effective date of those regulations for 
60 days, from February 1, 2025 to April 2, 2025.

DATES: The effective date of 9 CFR 11.1 through 11.18, published at 89 
FR 39194-39251, May 8, 2024, is delayed until April 2, 2025.

FOR FURTHER INFORMATION CONTACT: Ms. Sarah Helming, Deputy 
Administrator, Animal Care, 4700 River Road, Riverdale, MD 20737-1234; 
(970) 494-7478; [email protected].

SUPPLEMENTARY INFORMATION: On May 8, 2024, we published a final rule 
(89 FR 39194-39251) (``the rule'') amending the horse protection 
regulations to provide, among other provisions, that the Animal and 
Plant Health Inspection Service (``APHIS'') will screen, train, and 
authorize qualified persons for appointment by the management of any 
horse show, horse exhibition, or horse sale or auction to detect and 
diagnose soring at such events for the purposes of enforcing the Horse 
Protection Act. With the exception of Sec.  11.19 of the rule 
(``Authorization and training of Horse Protection Inspectors'') which 
went into effect on June 7, 2024, the remainder of the rule was 
scheduled to go into effect on February 1, 2025.
    On July 1, 2024, a complaint was filed in the U.S. District Court 
for the Northern District of Texas and amended on September 23, 
2024.\1\ The amended complaint alleges, in part, that the rule exceeds 
APHIS's statutory authority, would have a significant economic impact 
on the Tennessee Walking Horse industry altogether, and requests 
vacatur of the rule. The parties completed briefing on their cross-
motions for summary judgment on December 20, 2024. The parties have 
notified the court of the rule's February 1, 2025 effective date, and 
are currently awaiting a decision on the merits from the court.
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    \1\ The Tennessee Walking Horse National Celebration 
Association, et al. v. United States Department of Agriculture, et 
al., 2:24-cv-00143 (N.D. Tex.).
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    Under Section 705 of the Administrative Procedure Act, ``[w]hen an 
agency finds that justice so requires, it may postpone the effective 
date of action taken by it, pending judicial review.'' 5 U.S.C. 705. In 
light of the pending litigation, and for the following reasons, APHIS 
has determined that justice requires postponement of the effective date 
of the remainder of the rule--i.e., all provisions except for Sec.  
11.19--for 60 days, to April 2, 2025.\2\ The postponement will 
temporarily preserve the regulatory status quo while the litigation is 
pending. The plaintiffs have raised serious questions concerning the 
validity of certain provisions of the rule, including the prohibitions 
of action devices and substances, and the provision on dermatological 
conditions indicative of soring. Specifically, plaintiffs allege that: 
APHIS's data supporting the rule is unreliable because it overstates 
the rate of soring violations in Tennessee Walking Horses; APHIS's ban 
on action devices, pads and substances exceeds its statutory authority 
because those items, by themselves, do not cause soring; APHIS's 
``dermatologic conditions indicative of soring'' provision is 
unconstitutionally vague and will permit arbitrary disqualifications; 
APHIS's inspection process does not provide owners and trainers due 
process in that there is no mechanism for a pre-deprivation review of 
either a pre- or post-show disqualification; APHIS's abolition of 
Designated Qualified Persons is unsupported by the evidence before the 
Agency, is contrary to the statutory intent of having the industry work 
with APHIS to police itself, and arbitrarily limits the ability of 
professional horse trainers or farriers to participate; APHIS's 
economic analysis is deficient in that it relies on outdated data and 
inadequately addresses the rule's impact on industry and the larger 
U.S. economy; and APHIS failed to comply with the Regulatory 
Flexibility Act, in that it did not address the rule's significant 
impact on small entities.
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    \2\ We do not, through this action, postpone the effective date 
of Sec.  11.19 because, as courts have held, ``[5 U.S.C. ] 705 
permits an agency to `postpone the effective date' of a rule that 
has not yet taken effect, but does not permit an agency to suspend, 
without notice and comment, a rule that is already in effect.'' Ctr. 
for Biological Diversity v. Regan, 691 F. Supp. 3d 1, 8 (D.D.C. 
2023)
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    The Tennessee Walking Horse industry also contends that the rule's 
ban on action devices and pads will eliminate the Performance division 
of competition. A comment on the proposed rule suggested that 
Performance division Tennessee Walking Horses have been specifically 
bred and trained to compete with action devices and pads and cannot 
simply be retrained to compete as a flat-shod horse; however, no 
comment included specific evidence that Performance division horses 
trained to perform with the use of pads and action devices cannot 
perform well without them. A postponement at this time will temporarily 
delay the potential loss in value of horses that horse owners allege 
will occur when the rule's ban on action devices and pads is 
implemented.
    Although APHIS opposed plaintiffs' legal arguments in summary 
judgment briefing, and does not through this action concede that its 
own arguments lack merit or are unreasonable, plaintiffs raise 
significant legal challenges, and there is much uncertainty as to how 
the Court will decide. In addition, the competition season for 
regulated Tennessee Walking Horses runs from

[[Page 8254]]

February to November annually, and the industry will benefit from 
extension of the status quo, which will reduce the risk of shifting 
legal regimes and lack of clarity in the event the rule goes into 
effect and is later modified or altered by court order.
    If the court were to vacate, enjoin or modify the rule shortly 
before or after it otherwise would become effective, there would be 
costs associated with reverting back to the previous regulatory regime 
on short notice. It will be disruptive for the industry to change the 
structure of its shows and the list of prohibitions in the event of a 
shifting regulatory change, e.g., if the court decides in favor of 
plaintiffs in any material respect. It may also be disruptive to horse 
owners and trainers who do not know whether to sell, relinquish, or re-
train their horses to compete in the flat-shod division while the 
litigation is pending. A postponement will preserve the existing status 
quo--a legal and regulatory regime that has applied for years prior to 
the effective date--and eliminate uncertainty for the duration of the 
postponement, providing predictability to the regulated industry for at 
least the beginning of the 2025 show season, which starts on or about 
February 28, 2025.
    Given this legal uncertainty and the significant issues raised in 
the litigation, maintaining the status quo will avoid harm to the 
regulated industry, including plaintiffs and similarly situated 
stakeholders. Setting aside plaintiffs' legal challenges to the rule, 
we also note that other stakeholders have requested a postponement of 
the effective date for related reasons arising from the impending show 
season and a lack of clarity as to how the rule will operate: For 
example, one stakeholder group has conveyed to the Agency that 
proceeding forward with the original implementation date will undermine 
confidence in the Agency, the rule, and the ability to enforce the rule 
in a fair and transparent manner. Among other concerns, the stakeholder 
cited significant confusion within the industry about the rule, and has 
received numerous questions and concerns on a daily basis. There are 
also questions regarding Agency resources and whether personnel and 
funding are sufficient to implement the new rule. In light of this lack 
of clarity, the stakeholder requested that the Agency consider a 
postponement of the effective date of the rule, in order to afford it 
an opportunity to work collaboratively with APHIS to ensure that the 
rule achieves its intended purpose.
    Like the harm to the industry of not issuing a postponement, as 
discussed above, there are significant costs to the Agency associated 
with a change in regulatory regimes (i.e., if the rule is enjoined), 
such as investments in training of personnel, resources required to 
conduct stakeholder outreach, and potentially disruptions to 
administrative enforcement actions. A sixty-day delay will provide the 
Agency additional time to assess the impact of any decision and respond 
accordingly.
    The Agency has considered the public interest in furthering the 
humane treatment of horses and the effect to the regulated industry and 
APHIS, as described above. Considering the harms associated with 
regulatory uncertainty against the limited duration of the postponement 
of the rule, APHIS has determined that the balance of harms weighs in 
favor of a 60-day postponement. In accordance with law, this 
postponement is made without a notice-and-comment period. Notice and 
comment is not required when an agency delays the effective date of a 
rule under section 705 of the APA because such a stay is not 
substantive rulemaking; it merely maintains the status quo to allow for 
judicial review. See Bauer v. DeVos, 325 F. Supp. 3d 74, 106-07 (D.D.C. 
2018); Sierra Club v. Jackson, 833 F. Supp. 2d 11, 28 (D.D.C. 2012).
    This postponement likewise is in accordance with the Presidential 
Memorandum titled ``Regulatory Freeze Pending Review'' issued January 
20, 2025, which orders all agencies to consider postponing for 60 days 
the effective date of any rule that has not taken effect, for the 
purpose of reviewing any question of fact, law or policy that the rule 
raises.

    Authority: 5 U.S.C. 705; 15 U.S.C. 1823-1825 and 1828; 7 CFR 
2.22, 2.80, and 371.7.

    Done in Washington, DC, this 23rd day of January 2025.
Bruce Summers,
Acting Deputy Under Secretary, Marketing and Regulatory Programs.
[FR Doc. 2025-01836 Filed 1-24-25; 8:45 am]
BILLING CODE 3410-34-P
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