Removal of Voluntary Ante-Mortem Inspection Regulations for Horses Vacated by Court

On February 8, 2006, FSIS published the interim final rule “Ante-Mortem Inspection of Horses” (71 FR 6337), which established a voluntary fee-for-service program allowing horse slaughter establishments to pay FSIS to conduct ante-mortem inspections. The program was established in response to the FY 2006 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act (Pub. L. 109-97), which prohibited the use of federal funds for ante-mortem inspections of horses. To continue operating, U.S. horse slaughter businesses petitioned FSIS to implement a program under the Agricultural Marketing Act (AMA) (7 U.S.C. 1622 and 1624) that would enable horse slaughter establishments to directly fund the required inspections.

Shortly after publication of the interim final rule, an animal protection organization sued the USDA, alleging that FSIS violated the National Environmental Policy Act (NEPA) (42 U.S.C. 4331, et seq. ) by failing to conduct necessary environmental reviews before implementing the voluntary fee-for-service inspection program.^[1] The animal protection organization argued that this omission rendered the program arbitrary and capricious under the Administrative Procedure Act (APA) (5 U.S.C. 706(2)).

The U.S. District Court for the District of Columbia agreed with the animal protection organization, holding that FSIS' actions violated both NEPA and the APA. Consequently, the court vacated the interim final rule that established the fee-for-service program and permanently enjoined FSIS from implementing it. Therefore, FSIS is removing Subpart B—Horses under 9 CFR part 352 to ensure the Agency's regulations accurately reflect current requirements.

This rule is not subject to the APA requirement to publish a notice of proposed rulemaking and provide the public with the opportunity to comment before issuing a final rule because it falls under the good cause exception at 5 U.S.C. 553(b)(B). The good cause exception is satisfied when notice and comment is “impracticable, unnecessary, or contrary to the public interest” Id. This rule simply undertakes the ministerial task of implementing the court's order vacating the interim final rule.

For the reasons discussed in the preamble, FSIS is amending 9 CFR part 352 of the Federal meat inspection regulations as follows:

1. The heading of part 352 is revised to read as set forth above.

2. The authority citation for part 352 continues to read as follows:

Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17(g) and (i), 2.55.

3. Remove subpart B, consisting of § 352.19.