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What is Rulemaking?

By Jeffrey Howard

A couple of weeks ago it became public knowledge that USDA’s Animal and Plant Health Inspection Service (APHIS) had sent a proposed rule to the Office of Management and Budget for their review.  The proposed rule, which has not been made public at this point, would amend the Horse Protection Act. According to Wayne Pacelle at the Humane Society of the United States (HSUS), the rule would strengthen the enforcement of the HPA.

The HSUS helped write the PAST Act, originally introduced by Rep. Ed Whitfield (R-KY) and most recently introduced by Rep. Ted Yoho (R-FL), which would eliminate industry self-regulation and turn all enforcement over to the USDA.  In addition, the PAST Act would eliminate weighted shoes, pads and action devices from being utilized, effectively eliminating the show horse in the Tennessee Walking Horse industry.  Most sources familiar with the close relationship between USDA and HSUS indicate the rulemaking would include some if not all of the provisions of the PAST Act.

The announcement made by HSUS regarding the actions of APHIS has triggered many questions regarding the rulemaking process.  The industry is familiar with the process as APHIS did the same process to institute its Minimum Penalty Protocol.  After the final rule was published, the SHOW HIO and Contender Farms challenged the rule in the Fifth Circuit and won on appeal in the Fifth Circuit Court of Appeals by a unanimous decision and the USDA was forced to pay over $260,000 in legal fees back to SHOW HIO and Contender Farms.

What is rulemaking?  According to the Congressional Research Service, “Congress often grants rulemaking authority to federal agencies to implement statutory programs.  The regulations issued pursuant to this authority carry the force and effect of law and can have substantial implications for policy implementation.”  However, Congress does retain its general legislative power and may amend or repeal a regulation.

Agencies must follow a certain set of procedures prescribed in law and executive orders.  Those procedures include the agency developing a draft proposed rule that they first send to the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA).  OIRA reviews the proposed rule and sends the rule back to the agency with any changes.  At this point under the Administrative Procedures Act (APA), the agency must publish the proposed rule in the Federal Register.

The notice must provide (1) the time, place, and nature of the rulemaking proceedings; (2) a reference to the legal authority under which the rule is proposed; and (3) either the terms or subject of the proposed rule.  The agency must then allow “interested persons an opportunity” to commend on the proposed rule.  Typically, an agency will provide at least 30 days for public comment.  The agency is required to review those public comments and can make changes to the rule based on those comments.

Once the process is complete, the agency must publish the final rule in the Federal Register. The rule may not go into effect until at least 30 days after it is published in the Federal Register, with certain exceptions.

The final rule is subject to both judicial review as well as Congressional review.  In addition, Congress may use the appropriations process to require agencies to act in certain ways.  The 2017 Agriculture Appropriations bill recently passed committee and included language questioning APHIS’ use of rulemaking to go around Congress.  HSUS has pushed APHIS to implement the PAST Act through rulemaking since it has been ineffective in getting the PAST Act through Congress.

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