Skip to content

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.

More Stories

  • Celebration releases tentative class schedule for 2021

    The Tennessee Walking Horse National Celebration recently formed a committee to review and recommend changes to the Celebration’s class schedule. The committee has met over the last couple of months and reviewed past schedules, participation levels, industry trends and other criteria to come up with an initial class schedule. Read More
  • Make plans to attend the National Trainers' Show

    Make plans to attend the 53rd Annual National Trainers Show scheduled for March 18-20, 2021 at the Calsonic Arena in Shelbyville, Tenn... Read More
  • TWHBEA offers Youth Medallion Program for 2021

    The Tennessee Walking Horse Breeders and Exhibitors Association is proud to once again offer the Youth Medallion Program for the 2021 show season... Read More
  • Southern Championship relocates for 2021

    For many years the Georgia Walking Horse Exhibitors Association has sponsored and operated the Southern Championship Charity Horse Show... Read More
  • Walking In The Smokies stall deadline approaching

    The Walking In The Smokies Horse Show, scheduled for April 8-10, 2021, in Pigeon Forge, Tennessee is preparing for their first annual show and would like to send a reminder to anyone needing stalls that the deadline is March 15. Please contact Lexi Stinnett at 828-550-8520 to reserve stalls on the show grounds. Read More
  • Trainers' Show announces judges

    The Walking Horse Trainers’ Association National Trainers’ Show will be held at Calsonic Arena in Shelbyville, Tenn. March 18-20, 2021. Judges for the three-day event will be Wayne Dean, Newton Parks and Johnny Puckett. Read More
  • USDA prepares for 2021 show season

    The USDA recently conducted their virtual HIO training course for the 2021 show season. The USDA and industry recently received the final report from the National Academies of Sciences (NAS) and some of the recommendations in that report are communicated in the new processes the USDA will implement in 2021... Read More
  • WHOA hosts virtual awards ceremony

    On Saturday. February 20th, the Walking Horse Owners’ Association (WHOA) held their National High Point awards for 2020 on their WHOA Facebook page with winners who chose to be zooming in to accept their awards... Read More
  • WHOA to host virtual awards ceremony on February 20

    The Walking Horse Owners’ Association (WHOA) will recognize their award winners from the 2020 show season during a virtual awards ceremony on Saturday, February 20, 2021. The show will be broadcast live on WHOA’s Facebook page beginning at 6 pm central time. Read More
  • FAST Spring Showcase announces judging panel

    The FAST Spring Showcase is pleased to announce that John Fikes, Newton Parks and Sam Sorrell will judge this years’ two-day event. The show will be held at Calsonic Arena in Shelbyville, Tenn. April 16-17, 2021... Read More