United States District Judge for the District of Columbia Ellen S. Huvelle recently granted the USDA’s motion t dismiss the action brought by Humane Society of the United States (HSUS). HSUS wanted the USDA to be required to publish the rule that would have implemented the major tenants of the Prevent All Soring Tactics (PAST) through the regulatory process.

The process all began in 2010 with the OIG Report that outlined major deficiencies in the USDA’s enforcement of the Horse Protection Act. The report was especially critical of the Horse Industry Organizations that helped USDA with enforcement of the Act. HSUS took the report and continuously petitioned the USDA to amend their regulations.  In 2016, after many years of HSUS being unable to get the PAST Act through Congress, the USDA agreed and published a rule that “would replace the HIO-administered scheme with USDA-licensed inspectors and would prohibit certain devices, equipment and foreign substances with no legitimate purpose other than to cause horse soring.”

On January 11, 2017, the Acting Deputy Under Secretary for Marketing and Regulatory Programs signed a document summarizing the outcome of the notice and comment procedures and sent the rule to the Office of the Federal Register (OFR) for publication as a final rule.  However the rule was not published prior to President Trump’s inauguration on January 20, 2017 and President Trump’s then chief of staff Reince Priebus issued a memorandum directed to agency heads entitled, “Regulatory Freeze Pending Review.”  That memorandum directed all agencies to immediately withdraw any rule that was at OFR but had not been published in the Federal Register.

The rule is now listed on the USDA’s list of inactive rulemakings. In a 2018 letter, the USDA explained that the rulemaking was inactive while the Department focused on higher-priority actions.