The Humane Society of the United States (HSUS) recently won on appeal against the USDA regarding the 2016 Horse Protection Rule and whether the USDA properly withdrew the old rule. The district court initially ruled in favor of the USDA that it did not have to file for notice and comment to withdraw the rule since it was never published in the Federal Register and thus was not a “final” rule. The rule was withdrawn by USDA in December 2021.

In a 2-1 decision at the DC Circuit Court of Appeals, the decision was reversed. The Department of Justice has 45 days to decide if it will appeal the decision of the DC Circuit. As pointed out in the dissenting opinion, this decision upends longstanding policy and has wide-ranging impacts far outside of just this Horse Protection Rule.

Ellis George Cipollone O’Brien Annaguey, LLP has previously been retained by the industry to file comments on the proposed new Horse Protection rule that the USDA has been working on and just released on the regulatory agenda for an anticipated October public notice. The new rule would go through the notice and comment period where counsel will help the industry with its formal comments.

When the original 2016 rule was going through this process, the industry filed comments disagreeing with many of the applications and impacts of that rule. The industry was prepared to challenge that rule should it have been published. The rule would have banned the use of action devices, pads, bands, weighted shoes and would have eliminated HIOs and turned over enforcement to USDA solely.

The DC Circuit’s opinion and reversal of the district court’s initial ruling has set off a firestorm of questions both with regards to this rule as well as all the other rules that have been affected by the same executive orders of the past several administrations. The industry is in contact with its attorneys and will pursue whatever avenues necessary to make sure the 2016 rule does not go unchallenged. Many things have changed since 2016, including massive amounts of new data with regards to inspection and violation rates as well as a joint USDA-industry funded independent study by the National Academies of Science where many aspects of inspection were questioned especially the scar rule which the NAS recommended be rewritten as it is unenforceable as currently drafted.

Industry leadership at all levels will be kept abreast of new developments as they happen and become available for public disclosure. Industry leadership is prepared and has been expecting a new rule with many of the same provisions as the 2016 rule. The DC Circuit’s opinion was unexpected but doesn’t change the industry’s preparedness to challenge the rule should USDA choose to publish it.