In other posts, we’ve discussed the Horse Protection Act and a couple of the accompanying Federal Regulations. Please keep in mind the the Horse Protection Act is a law passed by congress and can only be changed or amended by congress while Federal Regulations do not involve congress and are essentially mandatory requirements set forth by the USDA.

Congress allows every federal agency to institute regulations which are helpful to that federal agency in upholding the law. The USDA is given wide authority in enacting Federal Regulations to ensure that the Horse Protection Act is enforced.

The USDA is required to research the issues pertaining to the Hore Protection Act and, when necessary, propose regulations that will help them more efficiently enforce the governing the law.

The USDA can and has filed Notices of Proposed Rulemaking in the Federal Register which allows for the public to comment on the proposed rule online through electronic means and sometimes at Listening Sessions held in key locations throughout the country where people would be affected by the proposed rule. In recent months, the USDA has also submitted a proposed rule to the Office of Management and Budget. The OMB, on behalf of the President, is required to review proposed rules when they are “significant” due to economic effects or if they raise important policy issue. One element of OMB’s review is the estimated costs and benefits of the proposed rule. Once approved by the OMB, the proposed rule will then be submitted to the Federal Register for publication.

Once comments are closed (typically 30-60 days), the USDA must conclude that its proposed rule will accomplish the goals or solve the problems identified. They are also required to consider whether an alternate solution is available which would be more effective or cost less. The USDA has the option of terminating the rulemaking or continue the rulemaking, as is or with changes.

When the USDA publishes a Final Rule, it typically becomes effective thirty (30) days after publication in the Federal Register unless good cause is shown why it should be implemented sooner. One the day the Final Rule is published in the Federal Register, it is also processed for inclusion in the Code of Federal Regulations.

Once the Final Rule is published, there is nothing that can be done to prevent or stop it from being enforced except through litigation.

In recent years, the Tennessee Walking Horse Industry has truly had wonderful patriotic participants willing to take a stand for the industry’s constitutional rights against government overreach. It was long overdue. Each and every participant at every horse show that has a class for a Tennessee Walking Horse, from the World Championships to the local 4-H or Saddle Club, is indebted to these patriots. Each and every owner or participant in any animal enterprise should be grateful to the Tennessee Walking Horse Industry standing tall against government abuse.

In 2013, a lawsuit was filed against the USDA concerning a Federal Regulation involving minimum mandatory penalties that the USDA stated all DQP programs must follow. On February 19, 2015, the US Court of Appeals for the Fifth Circuit found that the Federal Regulation extended beyond the authority of the USDA and repealed that Federal Regulation. Had this lawsuit not been filed, every DQP program would be required to follow the minimum mandatory penalty Federal Regulation.

In February 2016, another lawsuit was filed against the USDA. This lawsuit involves the Foreign Substance Federal Regulation, Letters of Warning (APHIS Form 7060), and the IES Investigative and Enforcement Process. This lawsuit claims that the protocol for foreign substance and their enforcement process is unauthorized and unlawful, including public reprimand and identifying people as violators through publication of the Letters of Warning without due process. This lawsuit is still pending in the Court system.

I fear the USDA will go through the motions with its latest proposed rule which will lead to yet another unlawful Federal Regulation. I find it ironic that HSUS and some members of congress have already publicly praised the USDA for its proposed rule even though the proposed rule has not yet been published. Because of the attention an unpublished proposed rule has garnered, I believe the proposed rule will be essentially the Past Act. Because HSUS has not been able to get the Past Act passed in congress although it is now in it’s third congressional term, I am confident that HSUS has used its “insider connections” within the USDA to propose the Past Act as a federal regulation.

We’ll address the Past Act and its potential impact on the horse industry whether instituted by congress or through federal regulation in a separate post.