Horse Protection; Licensing of Designated Qualified Persons and Other Amendments, 47068-47071 [2023-15462]

Download as PDF 47068 Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Proposed Rules PART 332—RECRUITMENT AND SELECTION THROUGH COMPETITIVE EXAMINATION 7. The authority citation for part 332 continues to read as follows: ■ Authority: 5 U.S.C. 1103, 1104, 1302, 2108, 3301, 3302, 3304, 3312, 3317, 3318, 3319; sec. 2(d), Pub. L. 114–137, 130 Stat. 310; E.O. 10577, 19 FR 7521, 3 CFR, 1954–1958 Comp., p. 218. ■ 8. Revise § 332.402 to read as follows: ddrumheller on DSK120RN23PROD with PROPOSALS1 § 332.402 Referring candidates for appointment. OPM or a delegated examining unit (DEU) will use one of the mechanisms identified below to refer a sufficient number of candidates for consideration, in accordance with this section and the agency’s delegated examining policies. (a) Agencies must establish a policy on the use of these procedures. (b) OPM or a DEU may determine, based on the position to be filled, which of the following mechanisms will best meet the hiring needs of the agency and result in at least three names for consideration. (1) OPM or a DEU may establish a cutoff score based on the assessment(s) used, supported by job analysis data; (2) OPM or a DEU may establish a cutoff score based on business necessity; (3) OPM or a DEU may use a set number of the highest ranked eligible applicants to certify; or (4) OPM or a DEU may use a set percentage of the highest ranked eligible applicants to certify. (5) When using a set number of candidates or top percentage of eligible applicants, all applicants with the same score and veterans’ preference category as the last candidate in the cut, will also be referred. (6) In selecting an appropriate mechanism, agencies should consider the number of positions to be filled, the assessment(s) used, historical applicant data, current labor market conditions, and other factors appropriate for the hiring action. (c) The mechanism, or approach, used must be determined before announcing the vacancy and must be stated in the job opportunity announcement. (d) The approach used must be clearly documented in the examining case file and available for reconstruction or third-party review. (e) Hiring managers will receive sufficient names, when available, to allow them to consider at least three candidates for each vacancy. (f) In instances when a certificate of eligibles results in fewer than three eligible and available candidates per vacancy and an agency needs to issue a VerDate Sep<11>2014 18:29 Jul 20, 2023 Jkt 259001 supplemental certification, OPM or a DEU must have decided, before announcing the vacancy, how to expand the group of candidates for whichever of the referral mechanisms used in accordance with the guidance in the Delegated Examining Operations Handbook. (g) OPM or a DEU will refer candidates for consideration by simultaneously listing a candidate on all certificates for which the candidate is interested, eligible, and within reach, except that, when it is deemed in the interest of good administration and candidates have been so notified, OPM or a DEU may choose to refer candidates for only one vacancy at a time. ■ 9. Revise § 332.404 to read as follows: § 332.404 Order of selection from certificates. A hiring manager, with sole regard to merit and fitness, shall select any eligible candidate certified for appointment on a certificate of eligibles, except the hiring manager may not pass over a preference eligible to select a lower standing non-preference eligible on the certificate unless the agency complies with pass over procedures in accordance with § 332.406. ■ 10. Revise § 332.405 to read as follows: § 332.405 Three considerations for appointment. An appointing officer is not required to consider an eligible who has been considered by one or more hiring managers for three separate appointments from the same or different certificates for the same position (i.e., the same title, series, and grade). In order to remove a candidate from consideration, one or more hiring managers must have made three valid selections and given bona fide consideration to the candidate during this process. (a) Bona fide consideration. To use this provision, a hiring manager must consider the candidate’s application material and interview the candidate for the position. The interview must have been of the same rigor and thoroughness as those conducted with other candidates interviewed for the position. (b) Documentation. The agency must document in the case file the bona fide consideration a candidate received and its reason(s) for removing the candidate from consideration, including a description of why the candidate is not receiving additional consideration, such as the candidate’s lack of a specific skill(s) or attribute(s). (c) Selection consideration. An agency may use the three consideration PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 provision to remove one candidate from further consideration starting with the fourth selection, i.e., after three valid selections have been made, and may remove one candidate for each subsequent selection made from a certificate of eligibles as long as bona fide consideration has been given and documented as required by this section. PART 337—EXAMINING SYSTEM 11. The authority citation for part 337 continues to read as follows: ■ Authority: 5 U.S.C. 1104(a), 1302, 2302, 3301, 3302, 3304, 3319, 5364; E.O. 10577, 3 CFR 1954–1958 Comp., p. 218; 33 FR 12423, Sept. 4, 1968; and 45 FR 18365, Mar. 21, 1980; 116 Stat. 2135, 2290; 117 Stat. 1392, 1665; and E.O. 13833. 12. Revise the heading to subpart C to read as follows: ■ Subpart C—Category Rating 13. Revise § 337.304 to read as follows: ■ § 337.304 Veterans’ preference. In this subpart: (a) Veterans’ preference must be applied as prescribed in 5 U.S.C. 3319(b) and (c)(6); (b) Veterans’ preference points as prescribed in § 337.101 are not applied in category rating; and (c) Sections 3319(b) and 3319(c)(6) of title 5 U.S.C. constitute veterans’ preference requirements for purposes of 5 U.S.C. 2302(b)(11)(A) and (B). [FR Doc. 2023–15374 Filed 7–20–23; 8:45 am] BILLING CODE 6325–39–P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Part 11 [Docket No. APHIS–2011–0009] RIN 0579–AE76 Horse Protection; Licensing of Designated Qualified Persons and Other Amendments Animal and Plant Health Inspection Service, USDA. ACTION: Notice of proposed rulemaking and request for comments. AGENCY: The Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture is proposing to withdraw a final rule that was filed for public inspection by the Office of the Federal Register on January 19, 2017, in advance of SUMMARY: E:\FR\FM\21JYP1.SGM 21JYP1 ddrumheller on DSK120RN23PROD with PROPOSALS1 Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Proposed Rules publication, and that amends the Agency’s Horse Protection Act regulations (the 2017 HPA final rule). On January 23, 2017, APHIS withdrew the 2017 HPA final rule from publication without undertaking notice and comment procedures, in accordance with a memorandum that was issued by the Executive Office of the President on January 20, 2017. However, following a lawsuit, the U.S. Court of Appeals for the District of Columbia Circuit found this withdrawal to be deficient. The District Court has indicated that one way to remedy this deficiency is to undertake notice and comment procedures on the proposed withdrawal. APHIS is therefore proposing to withdraw the 2017 HPA final rule, and take public comment on this matter. DATES: We will consider all comments that we receive on or before August 21, 2023. ADDRESSES: You may submit comments by either of the following methods: • Federal eRulemaking Portal: Go to www.regulations.gov. Enter APHIS– 2011–0009 in the Search field. Select the Documents tab, then select the Comment button in the list of documents. • Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS–2011–0009, Regulatory Analysis and Development, PPD, APHIS, Station 3A–03.8, 4700 River Road, Unit 118, Riverdale, MD 20737–1238. Supporting documents and any comments we receive on this docket may be viewed at www.regulations.gov or in our reading room, which is located in Room 1620 of the USDA South Building, 14th Street and Independence Avenue SW, Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799–7039 before coming. FOR FURTHER INFORMATION CONTACT: Dr. Aaron Rhyner, DVM, Assistant Director, USDA–APHIS–Animal Care, 2150 Centre Ave., Building B, Mailstop 3W11, Fort Collins, CO 80526–8117; aaron.a.rhyner@usda.gov; (970) 494– 7484. SUPPLEMENTARY INFORMATION: Under the Horse Protection Act (HPA, or the Act, 15 U.S.C. 1821 et seq.), the Secretary of Agriculture is authorized to promulgate regulations to prohibit the movement, showing, exhibition, or sale of sore horses. The Secretary has delegated responsibility for administering the Act to the Administrator of the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection VerDate Sep<11>2014 18:29 Jul 20, 2023 Jkt 259001 Service (APHIS). Within APHIS, the responsibility for administering the Act has been delegated to the Deputy Administrator for Animal Care. Regulations and standards established under the Act are contained in 9 CFR part 11 (referred to below as the regulations), and 9 CFR part 12 lists the rules of practice governing administrative proceedings.1 On July 26, 2016, APHIS published in the Federal Register (81 FR 49112– 49137, Docket No. APHIS–2011–0009) a proposal 2 to amend the regulations. Primarily, APHIS proposed to discontinue third-party training and oversight of Designated Qualified Persons, or DQPs, who inspect regulated horses for evidence of soring. Instead, we proposed all inspectors would have to be trained and licensed by APHIS. The rule also proposed several changes to the requirements that pertain to the management of horse shows, exhibitions, sales, and auctions, as well as changes to the list of devices, equipment, substances, and practices that are prohibited to prevent the soring of horses. Finally, we proposed to revise the inspection procedures that inspectors are required to perform. We solicited public comments on the proposal and received 130,975 submissions, as well as comments provided at 5 listening sessions. After APHIS reviewed the comments, on January 11, 2017, we submitted a final rule to the Office of the Federal Register (OFR) for publication (the 2017 HPA final rule).3 That rule was filed for public inspection, in advance of publication, on January 19, 2017. However, on January 20, 2017, the Chief of Staff of the President issued a memorandum instructing Federal agencies to immediately withdraw all regulations awaiting publication at the OFR.4 In response to the memorandum, the 2017 HPA final rule, which was on public inspection (and available on the Federal Register website, www.federalregister.gov), was withdrawn from publication by USDA 1 To view the regulations, go to https:// www.ecfr.gov/current/title-9/chapter-I/subchapterA/part-11. 2 To view the 2016 proposed rule, its supporting documents, and the comments that we received, go to https://www.regulations.gov/docket/APHIS-20110009. 3 We are making a copy of the 2017 HPA final rule available as a supporting document for this proposed withdrawal. To obtain a copy, go to www.regulations.gov, and enter APHIS–2011–0009 in the Search field, or contact the person listed under FOR FURTHER INFORMATION CONTACT. 4 To view the memorandum, go to https:// trumpwhitehouse.archives.gov/presidential-actions/ memorandum-heads-executive-departmentsagencies/. PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 47069 on January 23, 2017, the first business day following January 20, 2017. In August 2019, the Humane Society of the United States (HSUS) and other non-governmental organizations sued USDA. HSUS argued that the 2017 HPA final rule had been duly promulgated and could not be withdrawn without first providing public notice in the Federal Register and an opportunity for public comment. On July 22, 2022, the Court of Appeals for the D.C. Circuit reversed and remanded a lower court decision granting USDA’s motion to dismiss, holding that ‘‘an agency must provide notice and an opportunity for comment when withdrawing a rule that has been filed for public inspection but not yet published in the Federal Register.’’ Humane Soc’y of the U.S. v. U.S. Dep’t of Agric., 41 F.4th 564, 565 (D.C. Cir. 2022). In remanding the case to the lower court, the Court of Appeals clarified that ‘‘[o]n remand, the district court may consider all remedial issues, including the question of whether remand to the agency without vacatur is appropriate under the criteria established by Circuit precedent.’’ 54 F.4th 733, 734. On May 12, 2023, the District Court issued its decision on remand. Humane Soc’y of the U.S. v. U.S. Dep’t of Agric., No. 19–cv–2458 BAH, 2023 WL 3433970 (D.D.C. May 12, 2023). The Court remanded the withdrawal of the 2017 HPA final rule to APHIS without vacatur, but ordered that the withdrawal of the 2017 HPA final rule would be vacated in 120 days if the agency failed to take appropriate remedial action before then. The Court indicated that USDA could attempt to promulgate a new HPA rule or ‘‘remedy the deficiency in the withdrawal of [the 2017 HPA final rule] by conducting notice and comment on the withdrawal.’’ 2023 WL 3433970, at *14. On May 23, 2023, APHIS requested that the Court extend the deadline for action from 120 days to 180 days and the court granted that request on June 1, 2023. APHIS will not be able to promulgate a new HPA rule within 6 months. Executive orders and USDA Departmental guidance regarding the regulatory process impose procedural steps for that new rule, including the preparation of supporting documentation, that USDA estimates will take materially longer to complete. Moreover, for the other reasons described below, APHIS has opted to engage in notice and comment rulemaking on the withdrawal. E:\FR\FM\21JYP1.SGM 21JYP1 ddrumheller on DSK120RN23PROD with PROPOSALS1 47070 Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Proposed Rules In a document 5 published in the Federal Register on December 13, 2021 (86 FR 70755; Docket No. APHIS–2011– 0009) (the 2021 withdrawal), APHIS withdrew the July 26, 2016 proposed rule on which the 2017 HPA final rule was based. In that 2021 withdrawal, we articulated our reasons for withdrawing the proposed rule. Those reasons remain relevant for our now proposing to withdraw the 2017 HPA final rule. In the 2021 withdrawal, we stated that the National Academy of Sciences (NAS) reviewed methods for detecting soreness in horses and published a report of their findings in 2021.6 The report examined the inspection methods that DQPs use for identifying soreness in walking horses, new and emerging approaches for detecting pain, and use of the scar rule in determining compliance with the HPA, and made a number of science-based recommendations regarding revisions to APHIS’ HPA program and associated regulations. We stated that we had reviewed the July 26, 2016 proposed rule in light of the NAS report, and determined that the proposed rule did not sufficiently address the report’s findings. We also stated that, because 5 years had elapsed since the issuance of the proposed rule, the underlying data and analyses that supported the proposed rule likely need to be updated. Additionally, we stated that it was our intent to issue a new proposed rule that would incorporate more recent findings and recommendations, including the NAS report. The above reasons are relevant in 2023 and, indeed, have become even more pronounced. A draft of the new proposed HPA rule was accepted by the Office of Management and Budget on September 2, 2022, and is currently under review. The 2017 HPA final rule did not provide for inspection of horses by APHIS employees as an alternative to inspection by third-party inspectors who have to be trained and licensed by APHIS, despite concerns from commenters that inspectors that meet APHIS’ criteria could be prohibitively expensive for small shows. It is APHIS’ intent, as stated in the Spring 2023 Unified Regulatory Agenda, to make such allowance in the new proposed rule. Therefore, consistent with the 2021 withdrawal of the July 2016 proposed rule, we are proposing also to withdraw 5 To view the withdrawal, go to https:// www.regulations.gov/document/APHIS-2011-000911188. 6 A Review of Methods for Detecting Soreness in Horses. Washington, DC: The National Academies Press. https://doi.org/10.17226/25949. VerDate Sep<11>2014 18:29 Jul 20, 2023 Jkt 259001 the 2017 HPA final rule to avoid regulatory whiplash—i.e., allowing a new (yet outdated) regulation to go into effect that would be subject to change, within a short period of time, by yet another rulemaking. Maintaining the status quo while going forward with the new proposed HPA rule will avoid regulatory confusion for both the industry and the public. Additionally, allocating resources towards implementing regulations that were developed without the benefit of consideration of the recent NAS report’s findings, as well as recent inspection data, would hamper APHIS’ current efforts to modernize the horse protection regulations. Accordingly, we are proposing to withdraw the 2017 HPA final rule, and are requesting public comment on our proposed withdrawal. Comments shall be considered relevant to the proposed withdrawal to the extent that they articulate reasons for or against the withdrawal. To that end, we are making a copy of the 2017 HPA final rule available as a supporting document for this proposed withdrawal (see footnote 3). Following the comment period, APHIS will publish a subsequent action in the Federal Register announcing the Agency’s determination whether or not to withdraw the 2017 HPA final rule based on the comments received. Executive Orders 12866, 13563, and 14094, and the Regulatory Flexibility Act This proposed withdrawal has been determined to be significant for the purposes of Executive Order 12866, as amended by Executive Order 14094, and, therefore, has been reviewed by the Office of Management and Budget. We have prepared an economic analysis for this rulemaking. The economic analysis provides a costbenefit analysis, as required by Executive Orders 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The economic analysis also examines the potential economic effects of this rulemaking on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 APHIS is proposing to withdraw a final rule that was filed for public inspection, in advance of publication, by the Office of the Federal Register on January 19, 2017, and that amends the Agency’s Horse Protection Act regulations (the 2017 HPA final rule). APHIS withdrew the 2017 HPA final rule from publication without undertaking notice and comment procedures on January 23, 2017, in accordance with a memorandum that was issued by the Executive Office of the President on January 20, 2017. However, following a lawsuit, the U.S. Court of Appeals for the District of Columbia Circuit found this withdrawal to be deficient. The District Court has indicated that one way to remedy this deficiency is to undertake notice and comment procedures on the proposed withdrawal. APHIS is therefore proposing to withdraw the 2017 HPA final rule, and take public comment on this matter. This proposed withdrawal is an administrative action and in intended to support the withdrawal of the 2017 HPA final rule. This action would not have a significant impact on the affected entities. In the absence of apparent significant economic impacts, we have not identified alternatives that would minimize such impacts. In addition, APHIS is in the process of developing new regulations that would provide protections to the regulated horses. In addition, this new amendments to the Horse Protection regulations would incorporate the findings of a 2021 National Academy of Sciences (NAS) study that examined methods used to inspect horses for soreness. This NAS study was published after the 2017 HPA rule. Executive Order 12372 This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.) Executive Order 13175 This proposed withdrawal has been reviewed in accordance with the requirements of Executive Order 13175, ‘‘Consultation and Coordination with Indian Tribal Governments.’’ Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or E:\FR\FM\21JYP1.SGM 21JYP1 Federal Register / Vol. 88, No. 139 / Friday, July 21, 2023 / Proposed Rules more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We have determined that this action does not have tribal implications, insofar as it would withdraw a final rule that the Agency never implemented or enforced. Done in Washington, DC, this 17th day of July 2023. Jennifer Moffitt, Undersecretary, Marketing and Regulatory Programs, USDA. The Board, CFPB, FDIC, NCUA, and OCC (together, the agencies) are issuing proposed guidance that would highlight risks associated with deficient residential real estate valuations and describe how financial institutions may incorporate reconsiderations of value (ROV) processes and controls into established risk management functions. The proposed guidance would also highlight examples of policies and procedures that a financial institution may choose to establish to help identify, address, and mitigate the risk of discrimination impacting residential real estate valuations. [FR Doc. 2023–15462 Filed 7–20–23; 8:45 am] DATES: Paperwork Reduction Act This proposed withdrawal contains no reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). BILLING CODE 3410–34–P DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency 12 CFR Part 34 [Docket ID OCC–2023–0007] FEDERAL RESERVE SYSTEM 12 CFR Chapter II [Docket No. OP–1809] FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Part 323 RIN 3064–ZA36 NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Part 722 [Docket ID NCUA–2023–0061] CONSUMER FINANCIAL PROTECTION BUREAU 12 CFR Chapter X [Docket No. CFPB–2023–0033] ddrumheller on DSK120RN23PROD with PROPOSALS1 Office of the Comptroller of the Currency (OCC), Treasury. ACTION: Proposed interagency guidance with request for comment. Interagency Guidance on Reconsiderations of Value of Residential Real Estate Valuations Board of Governors of the Federal Reserve System (Board); Consumer Financial Protection Bureau (CFPB); Federal Deposit Insurance Corporation (FDIC); National Credit Union Administration (NCUA); and AGENCY: VerDate Sep<11>2014 18:29 Jul 20, 2023 Jkt 259001 SUMMARY: Comments must be submitted on or before September 19, 2023. ADDRESSES: Interested parties are encouraged to submit written comments to any and all agencies listed below. Comments submitted to the Federal eRulemaking Portal will be shared with all agencies for consideration. Comments should be directed to: OCC: Commenters are encouraged to submit comments through the Federal eRulemaking Portal. Please use the title ‘‘Joint Guidance on Reconsiderations of Value of Residential Real Estate Valuations’’ to facilitate the organization and distribution of the comments. You may submit comments by any of the following methods: • Federal eRulemaking Portal— Regulations.gov: go to https:// regulations.gov/. Enter ‘‘Docket ID OCC– 2023–0007’’ in the Search Box and click ‘‘Search.’’ Public comments can be submitted via the ‘‘Comment’’ box below the displayed document information or by clicking on the document title and then clicking the ‘‘Comment’’ box on the top-left side of the screen. For help with submitting effective comments please click on ‘‘Commenter’s Checklist.’’ For assistance with the Regulations.gov site, please call 1–866–498–2945 (toll free) Monday–Friday, 9 a.m.–5 p.m. ET, or email regulationshelpdesk@gsa.gov. • Mail: Chief Counsel’s Office, Attention: Comment Processing, Office of the Comptroller of the Currency, 400 7th Street SW, Suite 3E–218, Washington, DC 20219. • Hand Delivery/Courier: 400 7th Street SW, Suite 3E–218, Washington, DC 20219. Instructions: You must include ‘‘OCC’’ as the agency name and ‘‘Docket ID OCC–2023–2007’’ in your comment. PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 47071 In general, the OCC will enter all comments received into the docket and publish the comments on the Regulations.gov website without change, including any business or personal information provided such as name and address information, email addresses, or phone numbers. Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. You may review comments and other related materials that pertain to this action by the following method: • Viewing Comments Electronically— Regulations.gov: Go to https:// regulations.gov/. Enter ‘‘Docket ID OCC– 2023–0007’’ in the Search Box and click ‘‘Search.’’ Click on the ‘‘Documents’’ tab and then the document’s title. After clicking the document’s title, click the ‘‘Browse Comments’’ tab. Comments can be viewed and filtered by clicking on the ‘‘Sort By’’ drop-down on the right side of the screen or the ‘‘Refine Results’’ options on the left side of the screen. Supporting materials can be viewed by clicking on the ‘‘Documents’’ tab and filtered by clicking on the ‘‘Sort By’’ drop-down on the right side of the screen or the ‘‘Refine Documents Results’’ options on the left side of the screen. For assistance with the Regulations.gov site, please call 1–866– 498–2945 (toll free) Monday–Friday, 9 a.m.–5 p.m. ET, or email regulationshelpdesk@gsa.gov. The docket may be viewed after the close of the comment period in the same manner as during the comment period. Board: You may submit comments, identified by Docket No. OP–1809, by any of the following methods: • Agency Website: https:// www.federalreserve.gov. Follow the instructions for submitting comments at https://www.federalreserve.gov/apps/ foia/proposedregs.aspx. • Email: regs.comments@ federalreserve.gov. Include the docket number in the subject line of the message. • Fax: (202) 452–3819 or (202) 452– 3102. • Mail: Ann Misback, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW, Washington, DC 20551. In general, all public comments will be made available on the Board’s website at www.federalreserve.gov/ generalinfo/foia/ProposedRegs.cfm as submitted, and will not be modified to E:\FR\FM\21JYP1.SGM 21JYP1

Agencies

[Federal Register Volume 88, Number 139 (Friday, July 21, 2023)]
[Proposed Rules]
[Pages 47068-47071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15462]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 11

[Docket No. APHIS-2011-0009]
RIN 0579-AE76


Horse Protection; Licensing of Designated Qualified Persons and 
Other Amendments

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Notice of proposed rulemaking and request for comments.

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SUMMARY: The Animal and Plant Health Inspection Service (APHIS) of the 
United States Department of Agriculture is proposing to withdraw a 
final rule that was filed for public inspection by the Office of the 
Federal Register on January 19, 2017, in advance of

[[Page 47069]]

publication, and that amends the Agency's Horse Protection Act 
regulations (the 2017 HPA final rule). On January 23, 2017, APHIS 
withdrew the 2017 HPA final rule from publication without undertaking 
notice and comment procedures, in accordance with a memorandum that was 
issued by the Executive Office of the President on January 20, 2017. 
However, following a lawsuit, the U.S. Court of Appeals for the 
District of Columbia Circuit found this withdrawal to be deficient. The 
District Court has indicated that one way to remedy this deficiency is 
to undertake notice and comment procedures on the proposed withdrawal. 
APHIS is therefore proposing to withdraw the 2017 HPA final rule, and 
take public comment on this matter.

DATES: We will consider all comments that we receive on or before 
August 21, 2023.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to www.regulations.gov. 
Enter APHIS-2011-0009 in the Search field. Select the Documents tab, 
then select the Comment button in the list of documents.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2011-0009, Regulatory Analysis and Development, PPD, 
APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-
1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at www.regulations.gov or in our reading room, which is 
located in Room 1620 of the USDA South Building, 14th Street and 
Independence Avenue SW, Washington, DC. Normal reading room hours are 8 
a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure 
someone is there to help you, please call (202) 799-7039 before coming.

FOR FURTHER INFORMATION CONTACT: Dr. Aaron Rhyner, DVM, Assistant 
Director, USDA-APHIS-Animal Care, 2150 Centre Ave., Building B, 
Mailstop 3W11, Fort Collins, CO 80526-8117; [email protected]; 
(970) 494-7484.

SUPPLEMENTARY INFORMATION: Under the Horse Protection Act (HPA, or the 
Act, 15 U.S.C. 1821 et seq.), the Secretary of Agriculture is 
authorized to promulgate regulations to prohibit the movement, showing, 
exhibition, or sale of sore horses.
    The Secretary has delegated responsibility for administering the 
Act to the Administrator of the U.S. Department of Agriculture's (USDA) 
Animal and Plant Health Inspection Service (APHIS). Within APHIS, the 
responsibility for administering the Act has been delegated to the 
Deputy Administrator for Animal Care. Regulations and standards 
established under the Act are contained in 9 CFR part 11 (referred to 
below as the regulations), and 9 CFR part 12 lists the rules of 
practice governing administrative proceedings.\1\
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    \1\ To view the regulations, go to https://www.ecfr.gov/current/title-9/chapter-I/subchapter-A/part-11.
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    On July 26, 2016, APHIS published in the Federal Register (81 FR 
49112-49137, Docket No. APHIS-2011-0009) a proposal \2\ to amend the 
regulations. Primarily, APHIS proposed to discontinue third-party 
training and oversight of Designated Qualified Persons, or DQPs, who 
inspect regulated horses for evidence of soring. Instead, we proposed 
all inspectors would have to be trained and licensed by APHIS. The rule 
also proposed several changes to the requirements that pertain to the 
management of horse shows, exhibitions, sales, and auctions, as well as 
changes to the list of devices, equipment, substances, and practices 
that are prohibited to prevent the soring of horses. Finally, we 
proposed to revise the inspection procedures that inspectors are 
required to perform.
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    \2\ To view the 2016 proposed rule, its supporting documents, 
and the comments that we received, go to https://www.regulations.gov/docket/APHIS-2011-0009.
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    We solicited public comments on the proposal and received 130,975 
submissions, as well as comments provided at 5 listening sessions. 
After APHIS reviewed the comments, on January 11, 2017, we submitted a 
final rule to the Office of the Federal Register (OFR) for publication 
(the 2017 HPA final rule).\3\ That rule was filed for public 
inspection, in advance of publication, on January 19, 2017. However, on 
January 20, 2017, the Chief of Staff of the President issued a 
memorandum instructing Federal agencies to immediately withdraw all 
regulations awaiting publication at the OFR.\4\ In response to the 
memorandum, the 2017 HPA final rule, which was on public inspection 
(and available on the Federal Register website, 
www.federalregister.gov), was withdrawn from publication by USDA on 
January 23, 2017, the first business day following January 20, 2017.
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    \3\ We are making a copy of the 2017 HPA final rule available as 
a supporting document for this proposed withdrawal. To obtain a 
copy, go to www.regulations.gov, and enter APHIS-2011-0009 in the 
Search field, or contact the person listed under FOR FURTHER 
INFORMATION CONTACT.
    \4\ To view the memorandum, go to https://trumpwhitehouse.archives.gov/presidential-actions/memorandum-heads-executive-departments-agencies/.
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    In August 2019, the Humane Society of the United States (HSUS) and 
other non-governmental organizations sued USDA. HSUS argued that the 
2017 HPA final rule had been duly promulgated and could not be 
withdrawn without first providing public notice in the Federal Register 
and an opportunity for public comment.
    On July 22, 2022, the Court of Appeals for the D.C. Circuit 
reversed and remanded a lower court decision granting USDA's motion to 
dismiss, holding that ``an agency must provide notice and an 
opportunity for comment when withdrawing a rule that has been filed for 
public inspection but not yet published in the Federal Register.'' 
Humane Soc'y of the U.S. v. U.S. Dep't of Agric., 41 F.4th 564, 565 
(D.C. Cir. 2022). In remanding the case to the lower court, the Court 
of Appeals clarified that ``[o]n remand, the district court may 
consider all remedial issues, including the question of whether remand 
to the agency without vacatur is appropriate under the criteria 
established by Circuit precedent.'' 54 F.4th 733, 734.
    On May 12, 2023, the District Court issued its decision on remand. 
Humane Soc'y of the U.S. v. U.S. Dep't of Agric., No. 19-cv-2458 BAH, 
2023 WL 3433970 (D.D.C. May 12, 2023). The Court remanded the 
withdrawal of the 2017 HPA final rule to APHIS without vacatur, but 
ordered that the withdrawal of the 2017 HPA final rule would be vacated 
in 120 days if the agency failed to take appropriate remedial action 
before then. The Court indicated that USDA could attempt to promulgate 
a new HPA rule or ``remedy the deficiency in the withdrawal of [the 
2017 HPA final rule] by conducting notice and comment on the 
withdrawal.'' 2023 WL 3433970, at *14. On May 23, 2023, APHIS requested 
that the Court extend the deadline for action from 120 days to 180 days 
and the court granted that request on June 1, 2023.
    APHIS will not be able to promulgate a new HPA rule within 6 
months. Executive orders and USDA Departmental guidance regarding the 
regulatory process impose procedural steps for that new rule, including 
the preparation of supporting documentation, that USDA estimates will 
take materially longer to complete. Moreover, for the other reasons 
described below, APHIS has opted to engage in notice and comment 
rulemaking on the withdrawal.

[[Page 47070]]

    In a document \5\ published in the Federal Register on December 13, 
2021 (86 FR 70755; Docket No. APHIS-2011-0009) (the 2021 withdrawal), 
APHIS withdrew the July 26, 2016 proposed rule on which the 2017 HPA 
final rule was based. In that 2021 withdrawal, we articulated our 
reasons for withdrawing the proposed rule. Those reasons remain 
relevant for our now proposing to withdraw the 2017 HPA final rule.
---------------------------------------------------------------------------

    \5\ To view the withdrawal, go to https://www.regulations.gov/document/APHIS-2011-0009-11188.
---------------------------------------------------------------------------

    In the 2021 withdrawal, we stated that the National Academy of 
Sciences (NAS) reviewed methods for detecting soreness in horses and 
published a report of their findings in 2021.\6\ The report examined 
the inspection methods that DQPs use for identifying soreness in 
walking horses, new and emerging approaches for detecting pain, and use 
of the scar rule in determining compliance with the HPA, and made a 
number of science-based recommendations regarding revisions to APHIS' 
HPA program and associated regulations. We stated that we had reviewed 
the July 26, 2016 proposed rule in light of the NAS report, and 
determined that the proposed rule did not sufficiently address the 
report's findings.
---------------------------------------------------------------------------

    \6\ A Review of Methods for Detecting Soreness in Horses. 
Washington, DC: The National Academies Press. https://doi.org/10.17226/25949.
---------------------------------------------------------------------------

    We also stated that, because 5 years had elapsed since the issuance 
of the proposed rule, the underlying data and analyses that supported 
the proposed rule likely need to be updated.
    Additionally, we stated that it was our intent to issue a new 
proposed rule that would incorporate more recent findings and 
recommendations, including the NAS report.
    The above reasons are relevant in 2023 and, indeed, have become 
even more pronounced. A draft of the new proposed HPA rule was accepted 
by the Office of Management and Budget on September 2, 2022, and is 
currently under review. The 2017 HPA final rule did not provide for 
inspection of horses by APHIS employees as an alternative to inspection 
by third-party inspectors who have to be trained and licensed by APHIS, 
despite concerns from commenters that inspectors that meet APHIS' 
criteria could be prohibitively expensive for small shows. It is APHIS' 
intent, as stated in the Spring 2023 Unified Regulatory Agenda, to make 
such allowance in the new proposed rule.
    Therefore, consistent with the 2021 withdrawal of the July 2016 
proposed rule, we are proposing also to withdraw the 2017 HPA final 
rule to avoid regulatory whiplash--i.e., allowing a new (yet outdated) 
regulation to go into effect that would be subject to change, within a 
short period of time, by yet another rulemaking. Maintaining the status 
quo while going forward with the new proposed HPA rule will avoid 
regulatory confusion for both the industry and the public. 
Additionally, allocating resources towards implementing regulations 
that were developed without the benefit of consideration of the recent 
NAS report's findings, as well as recent inspection data, would hamper 
APHIS' current efforts to modernize the horse protection regulations.
    Accordingly, we are proposing to withdraw the 2017 HPA final rule, 
and are requesting public comment on our proposed withdrawal. Comments 
shall be considered relevant to the proposed withdrawal to the extent 
that they articulate reasons for or against the withdrawal. To that 
end, we are making a copy of the 2017 HPA final rule available as a 
supporting document for this proposed withdrawal (see footnote 3).
    Following the comment period, APHIS will publish a subsequent 
action in the Federal Register announcing the Agency's determination 
whether or not to withdraw the 2017 HPA final rule based on the 
comments received.

Executive Orders 12866, 13563, and 14094, and the Regulatory 
Flexibility Act

    This proposed withdrawal has been determined to be significant for 
the purposes of Executive Order 12866, as amended by Executive Order 
14094, and, therefore, has been reviewed by the Office of Management 
and Budget.
    We have prepared an economic analysis for this rulemaking. The 
economic analysis provides a cost-benefit analysis, as required by 
Executive Orders 12866 and 13563, which direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and equity). Executive Order 13563 
emphasizes the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. The 
economic analysis also examines the potential economic effects of this 
rulemaking on small entities, as required by the Regulatory Flexibility 
Act. The economic analysis is summarized below.
    APHIS is proposing to withdraw a final rule that was filed for 
public inspection, in advance of publication, by the Office of the 
Federal Register on January 19, 2017, and that amends the Agency's 
Horse Protection Act regulations (the 2017 HPA final rule). APHIS 
withdrew the 2017 HPA final rule from publication without undertaking 
notice and comment procedures on January 23, 2017, in accordance with a 
memorandum that was issued by the Executive Office of the President on 
January 20, 2017. However, following a lawsuit, the U.S. Court of 
Appeals for the District of Columbia Circuit found this withdrawal to 
be deficient. The District Court has indicated that one way to remedy 
this deficiency is to undertake notice and comment procedures on the 
proposed withdrawal. APHIS is therefore proposing to withdraw the 2017 
HPA final rule, and take public comment on this matter.
    This proposed withdrawal is an administrative action and in 
intended to support the withdrawal of the 2017 HPA final rule. This 
action would not have a significant impact on the affected entities. In 
the absence of apparent significant economic impacts, we have not 
identified alternatives that would minimize such impacts. In addition, 
APHIS is in the process of developing new regulations that would 
provide protections to the regulated horses. In addition, this new 
amendments to the Horse Protection regulations would incorporate the 
findings of a 2021 National Academy of Sciences (NAS) study that 
examined methods used to inspect horses for soreness. This NAS study 
was published after the 2017 HPA rule.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 2 CFR chapter IV.)

Executive Order 13175

    This proposed withdrawal has been reviewed in accordance with the 
requirements of Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments.'' Executive Order 13175 requires 
Federal agencies to consult and coordinate with tribes on a government-
to-government basis on policies that have tribal implications, 
including regulations, legislative comments or proposed legislation, 
and other policy statements or actions that have substantial direct 
effects on one or

[[Page 47071]]

more Indian tribes, on the relationship between the Federal Government 
and Indian tribes or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.
    We have determined that this action does not have tribal 
implications, insofar as it would withdraw a final rule that the Agency 
never implemented or enforced.

Paperwork Reduction Act

    This proposed withdrawal contains no reporting or recordkeeping 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

    Done in Washington, DC, this 17th day of July 2023.
Jennifer Moffitt,
Undersecretary, Marketing and Regulatory Programs, USDA.
[FR Doc. 2023-15462 Filed 7-20-23; 8:45 am]
BILLING CODE 3410-34-P
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