The DC Circuit has ruled in a case brought by the Humane Society that the Executive Branch must open a comment period before repealing an Obama-era regulation to prevent horse soring. In a 2–1 ruling, the court found that publication by the Office of the Federal Register (OFR) serves an evidentiary, not legal function; executive branch regulations go into effect as soon as the OFR shares the regulation with the public.
In 1970, Congress passed the Horse Protection Act, which authorized the Department of Agriculture (USDA) to act to prevent soring, the process of physically harming show horses to improve their gait; however, the agency was resource-constrained and enforcement was limited. Thus in 1976, Congress amended the Horse Protection Act to allow the agency to designate inspectors to disqualify sored horses from participating in competitions.
The USDA, then, certified venues to designate inspectors to prevent this practice, yet a 2010 report by the USDA Office of the Inspector General found soring to still be prevalent. Because these inspectors were paid by the venues themselves, they had a conflict of interest and would let cases slide to improve the reputation of their venues., the report said.
As such, on January 11, 2017, the Obama administration submitted a new regulation to the OFR to allow the USDA to instead certify independent veterinarians to inspect and disqualify show horses that were sored. The OFR shared the final text of the regulation with the public on the 19th alongside an announcement that it was scheduled to be published.
On January 20, 2017, Reince Priebus, chief of staff of the newly inaugurated Trump administration. issued a freeze on all new regulations yet to be published by the OFR, the opinion recounted. The Humane Society of America and four of its members sued the USDA, arguing that under the Administrative Procedure Act, the Trump administration needed to open a comment period prior to removing this regulation. The Trump administration argued that since the regulation was not published, the Act did not apply.
In an opinion written by Judge David Tatel, the DC Circuit sided with the plaintiffs. The decision states that since the Federal Register Act states that a document “is not valid as against a person who has not had actual knowledge of it until . . . [it is] made available for public inspection.” Since the new regulation was made available to the public prior to official publication, the date at which it was shared is the date at which it goes into effect. As such, the Executive Branch must open a comment period prior to repealing the regulation under the Administrative Procedure Act.
They also ruled against the USDA’s argument that since they were only freezing the regulation, not withdrawing it, the aforementioned acts do not apply. The court ruled that delayed effectiveness instead of repealing is a distinction without a difference.
The dissent, written by Judge Neomi Rao, argued, using Kennecott Utah Copper Corp. v. Department of Interior as precedent, that publication by the OFR is when regulations go into effect. However, that decision acknowledges that a regulation being shared with the affected parties is sufficient for effectiveness.
However, the court has limited this ruling to only apply when the OFR has shared a regulation with the public. They did not rule on whether the Department posting the final text of the regulation to its own website is sufficient for the regulation to be in effect. That would have to be decided by another case.
The case was heard by Judges Tatel, Millet, and Rao. The plaintiffs were represented by Latham & Watkins along with in-house counsel at the Humane Society.