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Proposed Rule2023-17814

Horse Protection

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Published

August 21, 2023

Issuing agencies

Agriculture DepartmentAnimal and Plant Health Inspection Service

Abstract

We propose to amend the horse protection regulations to provide that the Animal and Plant Health Inspection Service (APHIS) will screen, train, and authorize qualified persons to conduct inspections at horse shows, horse exhibitions, horse sales, and horse auctions to ensure compliance with the Horse Protection Act (the Act). The proposed actions are intended to strengthen regulatory requirements to protect horses from the practice of soring and eliminate unfair competition as the Act requires.

Full Text

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<title>Federal Register, Volume 88 Issue 160 (Monday, August 21, 2023)</title>
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[Federal Register Volume 88, Number 160 (Monday, August 21, 2023)]
[Proposed Rules]
[Pages 56924-56962]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17814]

[[Page 56923]]

Vol. 88

Monday,

No. 160

August 21, 2023

Part II

Department of Agriculture

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Animal and Plant Health Inspection Service

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9 CFR Part 11

Horse Protection; Proposed Rule

Federal Register / Vol. 88 , No. 160 / Monday, August 21, 2023 /
Proposed Rules

[[Page 56924]]

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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 11

[Docket No. APHIS-2022-0004]
RIN 0579-AE70

Horse Protection

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We propose to amend the horse protection regulations to
provide that the Animal and Plant Health Inspection Service (APHIS)
will screen, train, and authorize qualified persons to conduct
inspections at horse shows, horse exhibitions, horse sales, and horse
auctions to ensure compliance with the Horse Protection Act (the Act).
The proposed actions are intended to strengthen regulatory requirements
to protect horses from the practice of soring and eliminate unfair
competition as the Act requires.

DATES: We will consider all comments that we receive on or before
October 20, 2023.

ADDRESSES: You may submit comments by either of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="http://www.regulations.gov">www.regulations.gov</a>.
Enter APHIS-2022-0004 in the Search field. Select the Documents tab,
then select the Comment button in the list of documents.
<bullet> Postal Mail/Commercial Delivery: Send your comment to
Docket No. APHIS-2022-0004, 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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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; <a href="/cdn-cgi/l/email-protection#7b131409081e0b09140f1e180f1214153b0e081f1a551c140d"><span class="__cf_email__" data-cfemail="9ff7f0edecfaefedf0ebfafcebf6f0f1dfeaecfbfeb1f8f0e9">[email&#160;protected]</span></a>;
(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.
Section 2 of the Act, ``Definitions'' (15 U.S.C. 1821(3)), defines
a ``sore'' horse as follows:
``The term `sore' when used to describe a horse means that:
(A) An irritating or blistering agent has been applied, internally
or externally, by a person to any limb of a horse,
(B) Any burn, cut, or laceration has been inflicted by a person on
any limb of a horse,
(C) Any tack, nail, screw, or chemical agent has been injected by a
person into or used by a person on any limb of a horse, or
(D) Any other substance or device has been used by a person on any
limb of a horse or a person has engaged in a practice involving a
horse, and, as a result of such application, infliction, injection,
use, or practice, such horse suffers, or can reasonably be expected to
suffer, physical pain or distress, inflammation, or lameness when
walking, trotting, or otherwise moving. . . .''
Soring has been used primarily in the training of Tennessee Walking
Horses and racking horses \1\ to produce an exaggerated gait in
competition. However, the HPA's prohibition against sored horses
participating in shows, exhibitions, sales, and auctions applies to all
horse breeds.\2\ In addition to declaring that the soring of horses is
cruel and inhumane, Congress further found that the movement, showing,
exhibition, or sale of sore horses in intrastate commerce adversely
affects and burdens interstate and foreign commerce and creates unfair
competition.
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\1\ The racking horse is a breed derived from the Tennessee
Walking Horse. It has a smooth, natural gait known as the ``rack,''
a four-beat gait with only one foot striking the ground at a time.
\2\ APHIS monitors the activities of other breeds and
investigates credible evidence of soring as warranted.
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Background of HPA Regulations

Under the HPA, it is unlawful for any person to show, exhibit,
sell, or transport sore horses, or to use any prohibited equipment,
device, paraphernalia, or substance in horse shows, exhibitions, sales,
or auctions. The HPA holds horse owners responsible should they allow
any such unlawful activities to occur, and requires management of horse
shows, exhibitions, sales, and auctions (referred to as ``management''
or ``event management,'' below) to ensure that sore horses do not
compete or otherwise participate in these events.
After Congress passed the HPA in 1970, APHIS established
regulations to enforce the Act, including restrictions on the use of
certain equipment, devices, and substances. In accordance with the Act,
the regulations also include inspection provisions for detecting soring
in horses at shows, exhibitions, sales, and auctions. In 1976, Congress
amended the Act \3\ to allow (but not require) the management of any
horse show, exhibition, or sale or auction to appoint persons qualified
to inspect horses for soreness. Section 4 of the Act (15 U.S.C 1823(c))
requires the Secretary of Agriculture to prescribe by regulation
requirements for any appointment by the management of a horse show,
exhibition, sale, or auction of persons qualified to detect and
diagnose a horse which is sore or to otherwise inspect horses for the
purpose of enforcing the Act. Although the Act does not require that
management appoint a qualified person to inspect horses, if management
chooses not to do so it can be held liable for violating the Act if it
fails to disqualify a sore horse from participating in an event. If,
alternatively, event management appoints a qualified person to conduct
inspections, management may be held liable only for failing to
disqualify a sore horse after being notified by the qualified person or
by the Secretary of Agriculture, or his or her designee, that a horse
is sore.
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\3\ Public Law 94-360, 3, July 13, 1976, 90 Stat. 915; <a href="https://www.govinfo.gov/content/pkg/STATUTE-90/pdf/STATUTE-90-Pg915.pdf">https://www.govinfo.gov/content/pkg/STATUTE-90/pdf/STATUTE-90-Pg915.pdf</a>.
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Responding to Congress' 1976 amendment to the Act, APHIS revised
the regulations (44 FR 1558-1566, January 5, 1979) to include
qualifications for ``Designated Qualified Persons,'' or DQPs, to serve
as third-party inspectors employed and compensated by the industry, as
well as provisions for certifying industry-run

[[Page 56925]]

programs to train and license them. These programs are currently
administered by Horse Industry Organizations, or HIOs.
HIOs currently fill several roles, both unregulated and regulated,
for horse shows, exhibitions, sales, and auctions. For example, event
management may retain an HIO to assist with activities not regulated
under the Act, such as registering participants and coordinating event
logistics, supplying show judges, and promoting events. Regulated HIO
activities, in addition to training and licensing DQPs, include
assessing and enforcing minimum penalties for certain violations of the
regulations, conducting hearings for appeals of violations, and
reporting disciplinary actions against exhibitors, event management,
and DQPs to APHIS. Under the current regulatory regime, an HIO seeking
certification to train and license DQPs is required to submit to APHIS
a formal request in writing for certification of its DQP program and a
detailed outline of the program, in accordance with paragraph (b) of
Sec. 11.7 of the regulations.\4\
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\4\ Details of the current HIO certification process are
available in an APHIS-Animal Care Tech Note located at <a href="https://www.aphis.usda.gov/animal_welfare/hp/downloads/tech-note-certification-requirements-dqp-programs-web-layout.pdf">https://www.aphis.usda.gov/animal_welfare/hp/downloads/tech-note-certification-requirements-dqp-programs-web-layout.pdf</a>.
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Under the current Horse Protection program, DQPs are the primary
party responsible for inspecting and diagnosing soreness in horses. A
DQP is a qualified person who, under the provisions of 15 U.S.C.
1823(c) cited above, may be appointed by management of a horse show or
sale to detect horses that are sored, and to otherwise conduct
inspections for the purpose of enforcing the Act. DQPs may be
reimbursed for services directly by event management or by an HIO which
has contracted with them to provide inspections for events. DQPs must
have equine experience and meet professional qualifications as set
forth in Sec. 11.7(a).
DQP candidates must successfully complete a formal training program
developed and delivered by the HIO before they can be licensed, except
that veterinarians already accredited by USDA may be licensed as DQPs
without having to participate in formal training. Such veterinarians
must also be a member of the American Association of Equine
Practitioners, or large animal practitioners with substantial equine
experience, or knowledgeable of equine lameness as related to soring
and soring practices. Section 11.7(a)(1)(iii) states that veterinarians
having such knowledge might include those with a small animal practice
who own, train, judge, or show horses, or be Doctors of Veterinary
Medicine who teach equine related subjects in an accredited college or
school of veterinary medicine.
Alternatively, DQPs may be farriers, horse trainers, and other
knowledgeable individuals whose past experience and training would
qualify them for positions as HIO stewards or judges (or their
equivalent), provided that they are trained and licensed by an HIO or
association whose DQP program has been certified by APHIS. Of the 59
persons licensed as DQPs in fiscal year 2022, only one is a
veterinarian.
APHIS Veterinary Medical Officers (VMOs) may attend HPA-covered
events unannounced to oversee and conduct inspections and to otherwise
determine compliance with the Act. To ensure that horses are
disqualified when soreness is detected or when other violations are
found, APHIS also reviews reports by event management, HIOs, and DQPs,
and conducts audits of records maintained by certified DQP programs.
APHIS has several options for resolving a case in which the
evidence substantiates that an alleged violation has occurred. These
include issuing official warnings to those involved in the alleged
violation, offering to resolve the case through a stipulated penalty,
and referring the case to the USDA Office of the General Counsel for
formal administrative action before the USDA Office of Administrative
Law Judges or referral to the U.S. Department of Justice.

Summary of Current Regulations

The current structure of the Horse Protection regulations in 9 CFR
parts 11 and 12 is summarized below.
Section 11.1, ``Definitions,'' lists the definitions for terms used
throughout part 11.
Section 11.2, ``Prohibitions concerning exhibitors,'' lists general
and specific prohibitions for any device, method, practice, or
substance used on any horse at any horse show, exhibition, or horse
sale or auction if such use causes or can reasonably be expected to
cause such horse to be sore.
In Sec. 11.2(a), the general prohibitions state that ``no chain,
boot, roller, collar, action device, nor any other device, method,
practice, or substance shall be used with respect to any horse at any
horse show, horse exhibition, or horse sale or auction if such use
causes or can reasonably be expected to cause such horse to be sore.''
Prohibitions regarding devices, equipment, or practices on any horse at
any horse show, exhibition, or horse sale or auction are listed in
paragraph (b) of Sec. 11.2. (We discuss the specific prohibitions
under ``Prohibitions Concerning Exhibitors'' below.)
Paragraph (c) prohibits all substances on the extremities above the
hoof of any Tennessee Walking Horse or racking horse while being shown,
exhibited, or offered for sale at any horse show, exhibition, or horse
sale or auction, except lubricants such as glycerin, petrolatum, and
mineral oil, or mixtures. Lubricants can only be applied after the
horse has been inspected by management or by a DQP, and lubricants that
will be applied must be made available to APHIS personnel for
inspection and sampling as deemed necessary.
Paragraph (d) provides specific requirements for rest periods
during horse show and horse exhibition workouts or performances for 2-
year-old Tennessee Walking Horses and racking horses, and working
exhibitions for 2-year-old Tennessee Walking Horses and racking horses
at sales or auctions.
In paragraph (e) of Sec. 11.2, failure to provide information or
providing any false or misleading information required by the Act or
regulations or requested by Department representatives, by any person
that owns, trains, shows, exhibits, or sells or has custody of, or
direction or control over any horse shown, exhibited, sold, or
auctioned or entered for the purpose of being shown, exhibited, sold,
or auctioned at any horse show, exhibition, or horse sale or auction,
is prohibited.
Under Sec. 11.3, ``Scar rule,'' \5\ horses that do not meet the
scar rule criteria are considered to be sore and are subject to all
prohibitions of the Act. Paragraph (a) of Sec. 11.3 states the
``anterior and anterior-lateral surfaces of the fore pasterns (extensor
surface)'' are required to ``be free of bilateral granulomas,\6\ other
bilateral pathological evidence of inflammation, and, other bilateral
evidence of abuse indicative of soring including, but not limited to,
excessive loss of hair.''
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\5\ The term ``scar rule'' refers generally to the presence of
visible lesions or other abnormalities on the horse's pasterns
suggesting that a horse has been subjected to soring. We discuss the
scar rule in detail in a later section titled ``Dermatologic Changes
and the Scar Rule.''
\6\ ``Granuloma'' is defined in the regulation as any one of a
rather large group of fairly distinctive focal lesions that are
formed as a result of inflammatory reactions caused by biological,
chemical, or physical agents. This regulatory definition covers a
considerably wider range of lesions than does the medical definition
of granuloma. We elaborate on this distinction in ``Dermatologic
Changes and the Scar Rule.''
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Paragraph (b) of Sec. 11.3 states the ``posterior surfaces of the
pasterns (flexor surface), including the sulcus or ``pocket'' may show
bilateral areas of

[[Page 56926]]

uniformly thickened epithelial tissue if such areas are free of
proliferating granuloma tissue, irritation, moisture, edema, or other
evidence of inflammation.''
Section 11.4, ``Inspection and detention of horses,'' includes
requirements regarding inspection of horses by APHIS representatives,
as well as detention of horses for inspection if an APHIS
representative has probable cause to believe that a horse is sore. This
section also includes provisions for maintaining the well-being of a
horse in detention and for informing the owner, trainer, exhibitor, or
other person having immediate custody of or responsibility for any
horse allegedly found to be in violation of the Act or the regulations
of such alleged violation before the horse is released from detention.
Provisions for requesting reexamination and testing of detained horses
are also included in this section.
Under Sec. 11.5, ``Access to premises and records,'' paragraph (a)
provides that the management of any horse show, exhibition, or horse
sale or auction ``shall, without fee, charge, assessment, or other
compensation, provide APHIS representatives with unlimited access to
the grandstands, sale ring, barns, stables, grounds, offices, and all
other areas of any horse show, horse exhibition, or horse sale or
auction, including any adjacent areas under their direction, control,
or supervision for the purpose of inspecting any horses, or any records
required to be kept by regulation or otherwise maintained.'' Management
must also provide an adequate, safe, and accessible area for the visual
inspection and observation of horses while such horses are
competitively or otherwise performing at any horse show or horse
exhibition, or while such horses are being sold or auctioned or offered
for sale or auction at any horse sale or horse auction.
Paragraph (b) of Sec. 11.5 requires that ``[e]ach horse owner,
exhibitor, or other person having custody of or responsibility for any
horse at any horse show, horse exhibition, or horse sale or auction
shall, without fee, charge, assessment, or other compensation, admit
any APHIS representative or Designated Qualified Person appointed by
management, to all areas of barns, compounds, horse vans, horse
trailers, stables, stalls, paddocks, or other show, exhibition, or sale
or auction grounds or related areas at any horse show, horse
exhibition, or horse sale or auction, for the purpose of inspecting any
such horse at any and all reasonable times.'' Such persons must also
promptly present his or her horse for inspection upon notification by
any APHIS representative or DQP appointed by management for the purpose
of determining whether such horse is in compliance with the Act and
regulations.
Section 11.6, ``Inspection space and facility requirements,''
requires the management of every horse show, exhibition, or horse sale
or auction containing Tennessee Walking Horses or racking horses to
provide, without fee, sufficient space and facilities for APHIS
representatives to carry out their duties under the Act and
regulations, whether or not management has received prior notification
by APHIS. The management of every horse show, exhibition, horse sale or
auction which does not contain Tennessee Walking Horses or racking
horses must provide, without fee, sufficient space and facilities when
requested to do so by APHIS representatives. Space and facility
requirements include sufficient space for inspecting horses, protection
from the elements, a means to control crowds and onlookers, an
accessible, reliable, and convenient 110-volt electrical power source,
if electrical service is available at the site and is requested by the
APHIS representative, and appropriate inspection waiting and detention
areas.
Paragraph (a) of Sec. 11.7, ``Certification and licensing of
designated qualified persons (DQP's)'' currently lists basic
professional qualifications required of DQP applicants and paragraph
(b) lists certification requirements for DQP programs certified by
APHIS and initiated and maintained by HIOs or associations.\7\ As part
of maintaining a DQP program that APHIS has certified, HIOs are
responsible for delivering the training curriculum as well as ensuring
that criteria for selecting and licensing DQPs are met. HIOs must also
submit records to APHIS containing details of horse shows, exhibitions,
sales, and auctions at which DQPs appointed by them inspect horses.
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\7\ ``Association'' refers to HIOs using that term to describe
themselves.
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Paragraph (c) contains DQP licensing requirements in HIOs or
associations receiving Department certification for the training and
licensing of DQPs, and paragraph (d) of Sec. 11.7 lists recordkeeping
and other requirements to be met by HIOs or associations and DQPs.
Paragraph (e) of Sec. 11.7 prohibits the management of any horse
show, exhibition, horse sale, or horse auction from appointing any
person to detect and diagnose horses which are sore or to otherwise
inspect horses for the purpose of enforcing the Act if such person does
not hold a valid DQP license, if the license is canceled, or if the
person has been disqualified by the Secretary from performing
diagnosis, detection, and inspection under the Act, after notice and
opportunity for a hearing.
Paragraph (f) contains provisions for canceling a DQP license.
Concluding this section, paragraph (g) provides the process for
revoking the DQP program certification of an HIO or association.
Section 11.20 of the current regulations lists the responsibilities
and liabilities of the management of any horse show, exhibition, or
horse sale or auction which does not appoint a DQP to inspect horses,
noting that in such cases event management is responsible and legally
liable for identifying all horses that are sore or otherwise in
violation of the Act or regulations and must disqualify or disallow any
such horses from participating or competing in any horse show,
exhibition, horse sale, or horse auction. If management does appoint a
DQP to inspect horses, the section provides that management must not
take any action which would interfere with or influence a DQP in
carrying out his or her duties or making decisions concerning whether
or not any horse is sore or otherwise in violation of the Act or
regulations.
Section 11.20 also includes responsibilities for the management of
any horse show, exhibition, horse sale or auction which designates and
appoints one or more DQPs to inspect horses. Management in such cases
must accord the DQP access to all records and areas of the grounds of
such show, exhibition, sale, or auction and the same right to inspect
horses and records as is accorded to any APHIS representative.
Section 11.21 lists inspection procedures that DQPs must follow,
including requirements for walking and turning the horse in a manner
that allows the DQP to determine whether the horse exhibits signs of
soreness. This section also includes the procedure for proper palpation
to detect soreness, as well as procedures for conducting horses through
other elements of the inspection process.
Under Sec. 11.22, ``Records required and disposition thereof,''
the management of any horse show, exhibition, or horse sale or auction,
that contains Tennessee Walking Horses or racking horses is required to
maintain for at least 90 days following the closing date of the show,
exhibition, or sale or auction, all pertinent records. If specifically
required by APHIS, management may be required to hold the records
specified longer than 90 days.

[[Page 56927]]

Under paragraph (a) of Sec. 11.23, ``Inspection of records,'' the
management of any horse show, exhibition, or horse sale or auction must
allow any APHIS representative, upon request, to examine and make
copies of any and all records pertaining to any horse. Similarly,
paragraph (b) requires that HIOs or associations that train, maintain,
and license inspectors under a certified DQP program must permit any
APHIS representative, upon request, to examine and copy any and all
records relating to the DQP program which are required by any part of
the regulations.
In Sec. 11.24, ``Reporting by management,'' paragraph (a) states
that within 5 days following the conclusion of any horse show,
exhibition, or horse sale or auction, containing Tennessee Walking
Horses or racking horses, management must submit to the Regional
Director for the State in which the show, exhibition, sale or auction
was held, information required in paragraphs (a)(1) through (a)(6) of
Sec. 11.22 for each horse excused or disqualified by management or its
representatives from being shown, exhibited, sold or auctioned, and the
reasons for such action.
In paragraph (b) of Sec. 11.24, within 5 days following the
conclusion of any horse show, exhibition, or horse sale or auction
which does not contain Tennessee Walking Horses or racking horses, the
management must inform the Regional Director for the State in which the
show, exhibition, sale or auction was held, of any case where a horse
was excused or disqualified by management or its representatives from
being shown, exhibited, sold or auctioned because it was found to be
sore.
Section 11.25, ``Minimum penalties to be assessed and enforced by
HIOs that license DQPs'' lists suspensions and minimum penalties for
violations of the Act and regulations. HIOs are required to include
penalties in their rulebooks \8\ for violations that equal or exceed
the penalties listed in paragraph (c) of the section; minimum penalties
are specified in that paragraph. HIOs are also required in this section
to assess and enforce the penalty, as well as and any suspension
included with the penalty. The HIO must provide a process, subject to
APHIS approval, for alleged violators to appeal penalties.
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\8\ Rulebooks issued by HIOs or associations also include rules
and regulations for showing horses and descriptions of the several
classes and divisions in which horses show.
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Section 11.40 lists prohibitions and requirements concerning
persons involved in transportation of certain horses, including
providing APHIS with transportation information in order to determine
compliance with the Act and regulations.
Section Sec. 11.41 currently requires each HIO or association
which sponsors or sanctions any horse show, exhibition, or sale or
auction, to furnish the Department by March 1st of each year with all
such HIO or association rulebooks, and disciplinary procedures for the
previous year pertaining to violations of the Act or regulations,
applicable to such horse show, exhibition, or sale or auction. Each HIO
or association must also furnish the Department with a quarterly report
of all disciplinary actions taken against the management of \9\ any
horse show, exhibition, sale, or auction, any exhibitor, or any
licensed DQP, for violation of the Act or regulations, and the results.
The Department retains the authority to initiate enforcement
proceedings with respect to any violation of the Act.
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\9\ Due to a typographical error, the regulations in this
section currently say, ``management or'' rather than ``management
of.'' However, contextually, the latter is implied.
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Part 12 of the Horse Protection regulations reference the rules of
practice for USDA as promulgated in 7 CFR part 1.
Section 12.1 addresses the scope and applicability of rules of
practice. These rules of practice are applicable to adjudicatory,
administrative proceedings under section 6(a) of the Act (15 U.S.C.
1825(a)) and sections 6(b) and (c) of the Act (15 U.S.C. 1825(b) and
(c)).
Lastly, Sec. 12.10, ``Stipulations,'' provides that the
Administrator may enter into a stipulation with any person notified of
an apparent violation of the Act or regulations if that person waives a
hearing and agrees to pay a specified civil penalty within a designated
time.

Evaluation of the Horse Protection Program

Consistent with the aims of the HPA, the goal of the USDA-APHIS
Horse Protection program and regulations is to eliminate the inhumane
practice of soring and by so doing promote fair competition in horse
shows and exhibitions. Since 1979, when APHIS promulgated the
regulations to allow management to appoint qualified persons to conduct
inspections, the Agency has regularly evaluated the effectiveness of
the Horse Protection program and sought ways to improve its approaches
to ending soring.
Unfortunately, soring persists despite the Agency's efforts to
regulate and work with the Tennessee Walking Horse and racking horse
industries to eliminate the practice. In September 2010, USDA's Office
of the Inspector General (OIG) formally evaluated APHIS' oversight of
the Horse Protection program \10\ in accordance with generally accepted
government auditing standards.\11\ USDA-OIG concluded that the
inspection program, in which the horse industry trains and licenses
DQPs to inspect horses under APHIS' oversight, is ineffective in
ensuring that horses are not sore upon inspection as required under the
Act.
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\10\ USDA-OIG, Administration of the Horse Protection Program
and the Slaughter Horse Transport Program Audit Report, 33601-2-KC,
September 2010. The document is available on the <a href="http://Regulations.gov">Regulations.gov</a>
website (see under ADDRESSES in this document for a link to
<a href="http://Regulations.gov">Regulations.gov</a>).
\11\ Generally Accepted Government Auditing Standards (the
``Yellow Book'') is a publication of the U.S. Government
Accountability Office (GAO): <a href="https://www.gao.gov/assets/gao-18-568g.pdf">https://www.gao.gov/assets/gao-18-568g.pdf</a>.
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As part of the audit, OIG auditors performed fieldwork in 2008 and
2009 at APHIS offices in Washington, DC and Riverdale, Maryland. In
addition, auditors completed field visits to horse shows in Florida,
Kentucky, Missouri, South Carolina, and Tennessee, and reviewed laws,
regulations, procedures, and inspection protocols relating to oversight
of DQPs. They also interviewed APHIS program officials to understand
how they ensure oversight of their respective programs and reviewed
available laws, regulations, procedures, and program documents to
evaluate program implementation. Audit staff also interviewed personnel
from USDA-APHIS Investigative and Enforcement Services to understand
their role in collecting evidence for Federal cases, as well as USDA
Office of General Counsel officials to learn their processes for
evaluating potential cases for enforcement, prosecution, and closing of
Federal cases related to violations of the Act. APHIS Review and
Analysis Branch personnel were interviewed regarding HIO record reviews
performed and their study of the violation rate disparity that exists
when APHIS veterinarians are present at shows, sales, and exhibitions.
OIG auditors also reviewed show and sale reports for 34 shows that
they attended in 2008, in order to identify problems noted by APHIS
veterinarians relating to DQP performance and the issuance of violation
tickets. Audit staff interviewed HIO officials to discuss their
perspective on APHIS' oversight of the DQP program and interviewed DQPs
to discuss the program and possible improvements. Finally, auditors
attended a training seminar hosted by

[[Page 56928]]

APHIS for Tennessee Walking horse trainers to learn about new
inspection procedures and to observe APHIS personnel interacting with
industry trainers.
During these evaluations, OIG auditors identified multiple
conflicts of interest among DQPs, the HIOs that train, license, and
employ them, horse exhibitors, and management of shows and exhibitions
that affiliate with HIOs for inspection services. OIG concluded that
these conflicts of interest contributed to horses being allowed to
compete while sore. They noted that some DQPs are reluctant to dismiss
sored horses discovered during inspections, as doing so inconveniences
event management and makes it less likely that such DQPs will be hired
to inspect at future shows. Moreover, some DQPs own and exhibit their
own horses, so a DQP inspecting an exhibitor's horse at one show may be
facing that exhibitor conducting inspections at another show. As a
consequence, auditors found that some DQPs frequently failed to inspect
horses visually and physically in accordance with the regulations and
allowed sored horses to show.
OIG auditors also discovered that some DQPs avoid documenting
instances of soring in several ways. DQPs may provide only a warning to
exhibitors when they detect soring in a horse, when under the
regulations they are required to recommend to event management that the
horse be prohibited from performing. The auditors also concluded that
DQPs fail to sufficiently inspect and weigh chains, boots, and other
action devices as required under the regulations. The report noted that
when DQPs document a noncompliance with the Act, they sometimes
identify a stable hand or a relative of the exhibitor as the alleged
violator, so that the person actually at fault for the alleged
violation can avoid responsibility. Further, the OIG report found that
no reliable controls are in place to prevent an exhibitor who is
serving an industry-issued suspension for a violation from competing in
another show.
USDA-OIG's findings regarding the persistence of soring are
consistent with those of the USDA's Office of the Judicial Officer
(OJO), which issues final decisions on behalf of the Secretary of
Agriculture for purposes of judicial review.\12\ The Secretary of
Agriculture, through the OJO, has found that DQP inspections of horses
are less probative than inspections conducted by APHIS VMOs. Decisions
issued by the OJO include accounts of exhibitors showing sored horses
that had been inspected and cleared by DQPs, cursory inspections or use
of incorrect methods by DQPs, and exhibitors attempting to avoid
violations by having another person acknowledge responsibility.
---------------------------------------------------------------------------

\12\ Decisions for showing sored horses include: Decision and
Order, Tracy Essary (HPA Docket No. 15-0041, June 15, 2016): <a href="http://nalcpro.wpenginepowered.com/wp-content/uploads//assets/decisions/061516-Essary-HPA15-0041-DO.pdf">http://nalcpro.wpenginepowered.com/wp-content/uploads//assets/decisions/061516-Essary-HPA15-0041-DO.pdf</a>; Decision and Order, Rocky Roy McCoy
(HPA Docket No.16-0026, June 2, 2016): <a href="http://nalcpro.wpenginepowered.com/wp-content/uploads//assets/decisions/060216-McCoy-HPA16-0026-DO.pdf">http://nalcpro.wpenginepowered.com/wp-content/uploads//assets/decisions/060216-McCoy-HPA16-0026-DO.pdf</a>, and Decision and Order, Justin Jenne
(HPA Docket No. 13-0080, July 29, 2014: <a href="https://www.usda.gov/sites/default/files/documents/140729_13-0080%20Justin%20Jenne_%20DO.pdf">https://www.usda.gov/sites/default/files/documents/140729_13-0080%20Justin%20Jenne_%20DO.pdf</a>.
Decisions also include those issued for horses sored under the scar
rule, as in Decision and Order, Randall Jones (HPA Docket No. 13-
0053, June 29, 2015): <a href="http://nalcpro.wpenginepowered.com/wp-content/uploads//assets/decisions/062915-Jones-HPA13-0053-DO.pdf">http://nalcpro.wpenginepowered.com/wp-content/uploads//assets/decisions/062915-Jones-HPA13-0053-DO.pdf</a>. Decisions
of the Office of the Judicial Officer are located at <a href="https://www.usda.gov/oha/services/decisions">https://www.usda.gov/oha/services/decisions</a>. Decisions entered prior to
January 1, 2017, are available on the University of Arkansas
National Agricultural Law Center website: <a href="https://nationalaglawcenter.org/decisions/">https://nationalaglawcenter.org/decisions/</a>. In addition, a digest published
by USDA from 2013 to 2020, Agricultural Decisions, contains indexed
summaries of decisions and orders issued in adjudicatory proceedings
conducted for the Department: <a href="https://www.usda.gov/oha/services/agriculture-decisions-publications">https://www.usda.gov/oha/services/agriculture-decisions-publications</a>.
---------------------------------------------------------------------------

As the USDA-OIG audit showed, DQPs are less likely to issue
violations and more likely to allow sored horses to perform when APHIS
officials are not present to observe and confirm the outcome of
inspections. In a review of program data from 2005 to 2008, the OIG
audit report \13\ noted that out of 1,607 events in which DQPs provided
inspection services, 49 percent of the violations they issued occurred
at the 108 events at which APHIS officials were also present,
suggesting that DQPs were considerably more inclined to issue
violations when under APHIS observation than when they were not.
---------------------------------------------------------------------------

\13\ See footnote 10. USDA-OIG's data review and table is found
on page 11 of the audit report.
---------------------------------------------------------------------------

Furthermore, inspection data compiled by APHIS from fiscal year
(FY) 2017 to 2022 (Tables 1 and 2, below) shows that inconsistencies
persist in the number of violations detected by APHIS officials and
those issued by DQPs inspecting horses. During this period, APHIS
attended about 16 percent of all HPA-covered events featuring Tennessee
Walking Horses, racking horses, and other breeds at which horse
industry DQPs conducted inspections, performance as well as flat-shod
classes. While APHIS attended only a fraction of the events at which
DQPs were appointed to inspect horses, APHIS consistently reported
higher rates of noncompliance at these events based on its VMO
inspection findings. Most horses inspected by APHIS officials at these
events were chosen at random, although APHIS chose to inspect some
horses for which a suspicion of soring was warranted.\14\
---------------------------------------------------------------------------

\14\ The rates of noncompliance reported by APHIS VMOs represent
the sampling of horses that they inspected, not every horse at each
event. Moreover, APHIS records of inspections conducted by VMOs do
not differentiate between horses chosen at random and those chosen
on suspicion of soring. Horses in the latter group are more likely
to be diagnosed, as that sample presented indications of soring
prior to inspection.
---------------------------------------------------------------------------

Moreover, DQPs consistently reported higher rates of noncompliance
when APHIS officials were in attendance than when they were not. In FY
2021, for example, if only horses wearing ``performance packages''
(i.e., a padded horse) are considered, APHIS officials detected 158
instances of noncompliance with the HPA out of the 398 horses APHIS
inspected at the 17 events attended, resulting in close to a 40 percent
rate of noncompliance for performance horses. In contrast, of the 207
events attended and inspected by DQPs during the same period, DQPs
detected just 321 instances of noncompliance with the HPA out of the
11,825 performance horses they inspected, recording only a 1.9 percent
rate of noncompliance when APHIS officials were not present and 7.1
percent when they were.
Also notable is that the rate of noncompliance detected for horses
wearing performance packages was significantly and consistently higher
than that detected for flat-shod horses (Table 2). The marked
difference between the rates of noncompliance found in padded
performance classes and those found in flat-shod classes indicates that
soring is concentrated in horses made to perform the exaggerated and
unnatural chest-high gait popularly known as the ``big lick.'' Table 3
shows a similar discrepancy between performance and flat-shod horses
regarding positive tests for prohibited substances.

[[Page 56929]]

Table 1--Performance Horse Inspection Data for HPA-Covered Events From FY 2017-2022
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-
Entries HPA non- compliance Non-
inspected compliances rate Entries HPA Non- compliance Entries HPA Non- Non-
by DQPs detected by detected by inspected compliances rate inspected compliances compliance
(APHIS DQPs (APHIS DQPs (APHIS by DQPs detected by detected by by APHIS detected by rate
not not not (APHIS DQPs (APHIS DQPs (APHIS \1\ APHIS detected by
present) present) present) present) present) present) APHIS (%)
(%) (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY 2022.................................. 9,746 174 1.8 3,220 219 6.8 930 317 34.1
FY 2021.................................. 11,825 224 1.9 1,373 97 7.1 398 158 39.7
FY 2020.................................. 8,522 251 2.9 1,107 88 7.9 276 79 28.6
FY 2019.................................. 9,698 417 4.3 2,978 297 10.0 901 233 25.9
FY 2018.................................. 9,290 277 3.0 4,427 230 5.2 1,081 100 9.3
FY 2017.................................. 9,992 154 1.5 4,112 163 4.0 1,005 126 12.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Horse industry DQPs conducted inspections at these events. Not included are the few events APHIS attended where DQPs were not present.

Table 2--Flat-Shod Horse Inspection Data for HPA-Covered Events From FY 2017-2022
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-
Entries HPA non- compliance Non-
inspected compliances rate Entries HPA non- compliance Entries HPA non- Non-
by DQPs detected by detected by inspected compliances rate inspected compliances compliance
(APHIS DQPs (APHIS DQPs (APHIS by DQPs detected by detected by by APHIS detected by rate
not not not (APHIS DQPs (APHIS DQPs (APHIS \1\ APHIS detected by
present) present) present) present) present) present) APHIS (%)
(%) (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY 2022.................................. 29,822 16 0.1 4,956 16 0.3 357 6 1.7
FY 2021.................................. 33,949 31 0.1 1,624 3 0.2 143 1 0.7
FY 2020.................................. 27,252 16 0.1 758 5 0.7 50 1 2.0
FY 2019.................................. 35,302 32 0.1 4,045 24 0.6 297 16 5.4
FY 2018.................................. 32,624 14 0.04 5,168 8 0.2 475 5 1.1
FY 2017.................................. 31,871 9 0.03 3,818 17 0.4 483 3 0.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Horse industry DQPs conducted inspections at these events. Not included are the few events APHIS attended where DQPs were not present.

Table 3--Prohibited Substance Testing Data for HPA-Covered Events From FY 2017-2022
----------------------------------------------------------------------------------------------------------------
Performance Performance Flat-shod horses Flat-shod horses
horses tested for horses positive tested for positive for
prohibited for prohibited prohibited prohibited
substances substances \1\ substances substances \2\
----------------------------------------------------------------------------------------------------------------
FY 2022............................. 1,196 55 382 4
FY 2021............................. 1,104 71 292 2
FY 2020............................. 51 8 11 1
FY 2019............................. 111 84 23 3
FY 2018............................. 194 144 66 28
FY 2017............................. 123 83 35 10
----------------------------------------------------------------------------------------------------------------
\2\ These numbers reflect substances the laboratory reported to APHIS as significant findings.

While the data in tables 1 and 2 contain statistical anomalies and
represent only a sampling of rates of noncompliance, the discrepancy
between soring detected when APHIS officials are present at shows and
when they are not is broadly consistent over time. We have considered
several possible explanations for this discrepancy. In the absence of
APHIS representatives, some DQPs may feel complacent and less focused
on inspecting horses accurately, not due to any intention to allow a
sore horse to show, but simply through inattention. It also may be that
some DQPs are not receiving proper training in conducting inspections,
although the evidence above suggests that, on the whole, DQPs are
capable of diagnosing sored horses when under observation by APHIS
representatives. We find none of these explanations credible in
accounting for the discrepancy in soring diagnoses with and without
APHIS representatives present, nor do we believe that a significantly
different outcome would emerge if APHIS inspected every horse at every
event. Our conclusion, as was also the conclusion of the OIG audit, is
that a key obstacle to eliminating soring under the Horse Protection
program is the unwillingness of some DQPs to correctly palpate and
observe other actions necessary to making a proper diagnosis.
The data and findings presented in the OIG report and our
evaluation of inspection records show that soring is still
underdiagnosed in part because of the above noted conflicts of interest
within the Tennessee Walking Horse and racking horse industries. The
report also confirmed that APHIS lacked a sufficient number of
veterinary officers to attend and oversee inspections at all shows. The
report recommended that APHIS abolish the DQP program and establish by
regulation that only independent, accredited veterinarians perform
inspections at sanctioned shows. It also recommended that better
controls be instituted to prevent persons disqualified for HPA
infractions at sanctioned events from participating in subsequent
events. The report added that APHIS should hire and train these

[[Page 56930]]

inspectors and pass the costs for inspections along to event
management. In return, shows would benefit from improved compliance and
exhibitors would see fairer competition.
As indicated in its 2010 response to the report, APHIS agreed with
the intent of the USDA-OIG recommendations. APHIS responded that it
would propose a regulatory change to abolish the current DQP licensing
system and have the Agency be the only entity authorized to train and
license DQPs but stated that it could not predict the timing for doing
so. APHIS also stated that it would establish strict qualifications to
prohibit conflicts of interest so that DQPs having close ties with the
horse show industry would be excluded from licensing. APHIS
additionally declared at the time that it would continue to allow HIOs
to hire and compensate DQPs to inspect horse shows but they would have
to use only DQPs trained and licensed by APHIS.\15\ This would replace
the practice, still in place today, of DQPs being trained and licensed
under an HIO-run program under APHIS oversight, a practice that, as
discussed immediately below, APHIS has determined to present an
insoluble conflict of interests.
---------------------------------------------------------------------------

\15\ USDA-OIG Audit Report, page 18.
---------------------------------------------------------------------------

APHIS' response to the USDA-OIG audit report formed the basis for
our proposed 2016 revision of the HPA regulations, discussed below.\16\
After issuance of the report in 2010, APHIS also undertook several
nonregulatory approaches to help the industry improve compliance with
the Act, among them increased engagement with industry groups,
inspection workshops for DQPs, and stepped-up APHIS presence at certain
shows to oversee inspections and check whether disqualified persons are
participating. From 2018 to the present, APHIS has also hosted joint
training sessions with the HIOs to ensure all DQPs are receiving the
same training. Despite being directly trained by APHIS, DQPs continued
to perform unsatisfactory inspections, with no substantial reduction in
the number of sored horses performing in certain show classes. We
ultimately determined that the problem was not inadequate training, but
rather a regulatory structure in which DQPs lacked sufficient latitude
to inspect horses properly without fear of reprisal from management and
often had strong incentives not to do so.
---------------------------------------------------------------------------

\16\ In a separate rulemaking, APHIS also published a proposal
(76 FR 30864-30868, Docket No. APHIS-2011-0030) on May 27, 2011, to
require HIOs or associations that license DQPs to assess and enforce
minimum penalties for violations of the Act and regulations. A final
rule (77 FR 33607-33619) was published June 7, 2012, and became
effective 30 days later. These requirements are located in Sec.
11.25 of the current regulations.
---------------------------------------------------------------------------

Two provisions, both in Sec. 11.7(d)(7) of the current
regulations, specifically address conflicts of interest--one that
prohibits a DQP from exhibiting or selling a horse at an event in which
he or she has been appointed to inspect horses, and another in which
the DQP cannot inspect at a show or sale in which horses owned by a
member of his or her immediate family or employer are competing or are
being offered for sale. While these provisions focus on two clearly
apparent conflicts of interest, many others are not addressed in the
regulations and are not enforceable through nonregulatory actions. A
DQP may, for example, have business or other transactional interests
with show judges, HIO officials, or others who have horses competing in
events inspected by that DQP. We believe that a regulatory change that
brings inspectors directly under APHIS oversight is necessary so that
they can be sufficiently screened for conflicts of interest as a
condition of Agency authorization to conduct inspections.

2011 HPA Rulemaking

In 2011, APHIS initiated work on a rulemaking to reduce industry
conflicts of interest and participation of suspended persons in HPA-
covered events, as well as further restrict the physical means by which
horses are sored. On July 26, 2016, we published in the Federal
Register (81 FR 49112-49137, Docket No. APHIS-2011-0009) a proposal to
amend the regulations to provide that APHIS, rather than HIOs, would
train and license inspectors to diagnose sored horses and determine
compliance with the Act at horse shows, exhibitions, sales, and
auctions.
We invited the public to address our proposal to have APHIS train
and license inspectors to address the conflict of interests between
DQPs and the industry that results in underreporting violations of the
Act. Following the recommendation from the USDA-OIG audit, we further
proposed that only veterinarians and veterinary technicians,\17\
screened by APHIS for conflicts of interest and having equine
experience, may be licensed to inspect horses for soring at horse
shows, exhibitions, sales, and auctions. This would help ensure that
inspectors possess the medical expertise and adherence to professional
veterinary ethics codes to detect and diagnose sore horses capably and
reliably.
---------------------------------------------------------------------------

\17\ Veterinary technicians are not mentioned in the USDA-OIG
audit report, but we determined in the 2016 rulemaking that persons
holding this credential from an accredited program and having
adequate equine experience are qualified and may be considered for
licensure to inspect horses.
---------------------------------------------------------------------------

We also proposed in 2016 to amend the prohibitions on devices,
equipment, substances, and practices that can cause or mask soring or
can reasonably be expected to do so, particularly with respect to
Tennessee Walking Horses and racking horses.
We solicited public comments on the proposal and received 130,975
submissions, as well as comments provided at 5 listening sessions.
Comments came from State and Federal elected officials, including
current and former U.S. Senators and Representatives; State
agricultural agencies; farm bureaus; gaited horse organizations;
trotting horse federations and organizations; other domestic and
foreign horse industry organizations; veterinarians and veterinary
associations; horse rescue and animal welfare advocacy organizations;
horse owners, trainers, and farriers; small business owners; and the
general public.
After responding to public requests to extend the proposal comment
period,\18\ we reviewed the comments and, on January 11, 2017, we
submitted a final rule to the Office of the Federal Register (OFR) for
publication. 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.\19\ In response to the memorandum, APHIS withdrew the rule
from the OFR and it did not publish. The proposed rule on which the
final rule was based was also subsequently withdrawn \20\ from
publication.
---------------------------------------------------------------------------

\18\ 81 FR 65307 (Docket No. APHIS-2011-0009), September 22,
2016.
\19\ 82 FR 8346, January 20, 2017.
\20\ December 13, 2021 (86 FR 70755, Docket No. APHIS-2011-
0009).
---------------------------------------------------------------------------

On August 13, 2019, the Humane Society of the United States and
other non-governmental organizations filed a lawsuit. 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 27, 2020, the U.S.
District Court for the District of Columbia dismissed the suit, holding
that a rule becomes final upon publication in the Federal Register.
On July 22, 2022, the U.S. Court of Appeals for the D.C. Circuit
reversed and remanded, ruling that APHIS had to

[[Page 56931]]

provide notice and an opportunity for comment before withdrawing a rule
that was available 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). The mandate was issued December 13,
2022.
On May 12, 2023, the U.S. District Court issued its decision on
remand without vacatur, but ordered that the 2017 rule would take
automatic effect if the agency failed to take appropriate remedial
action: Either promulgate an updated version of the rule, or otherwise
remedy the deficiency in the withdrawal of the 2017 rule by conducting
notice and comment on the withdrawal. 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). APHIS signaled to the Court its intent to remedy the deficiency
by proposing to withdraw the 2017 final rule through notice and comment
processes, and a notice of proposed rulemaking to withdraw the 2017
rule was published in the Federal Register on July 21, 2023 (88 FR
47068-47071, Docket No. APHIS-2011-0009).
This current proposal incorporates steps taken in the 2017 HPA
final rule to eliminate soring. In addition, it provides recent support
and data emphasizing that the causes of soring are long-standing and
endemic, and not simply aberrations that occurred in the past. To this
end, we introduce into this proposal the Horse Protection program's
latest inspection statistics and a recent study \21\ by the National
Academy of Sciences (NAS), discussed below, that analyzes the causes of
soring and its diagnosis in light of the current regulations.
---------------------------------------------------------------------------

\21\ A Review of Methods for Detecting Soreness in Horses.
Washington, DC: The National Academies Press, 2021: <a href="https://doi.org/10.17226/25949">https://doi.org/10.17226/25949</a>.
---------------------------------------------------------------------------

National Academy of Sciences (NAS) Study

The NAS study, published in 2021, concurs with the USDA-OIG audit
report's recommendation that a regulatory change to the inspection
component of the Horse Protection program is necessary to eliminate the
conflicts of interest that encourage soring. The study was initiated in
July 2017, when APHIS, the Tennessee Department of Agriculture, and the
Tennessee Walking Horse Breeders Foundation jointly requested that NAS
evaluate methods to detect soreness to help ensure that Horse
Protection inspection protocols are based on sound scientific
principles that can be applied consistently.
In the study, NAS examined the methods currently employed by DQPs
and APHIS VMOs for detecting soreness in Tennessee Walking Horses and
evaluated current inspector qualifications. NAS also highlighted
emerging approaches for detecting soreness in horses and evaluated the
role of the scar rule, a set of visual criteria in current Sec. 11.3
used to determine if a horse has been sored. The committee that drafted
the NAS study consisted of equine veterinarians and other professionals
qualified to review the veterinary medical literature on hoof and
pastern pain and skin changes and evaluate methods used to identify
soreness in horses as defined in the Act and regulations for scientific
validity. As part of their research, the committee reviewed USDA
training materials and 61 DQP inspection videos provided by an HIO, and
observed problems consistent with those cited in the OIG audit report
11 years earlier. The NAS committee confirmed, in brief, that due to
both inadequate HIO training and industry conflicts of interest, DQPs
were not consistently or correctly diagnosing sore horses. The
committee noted that USDA's ``current horse inspection process for
detecting soreness involves observation of the horse's movement and
posture and palpation of the limbs, which is the gold standard for
detecting local pain and inflammation,'' \22\ and that performing these
actions knowledgeably and without conflicts of interest is essential to
determining whether a horse is sore.
---------------------------------------------------------------------------

\22\ NAS, A Review of Methods for Detecting Soreness in Horses,
page 3.
---------------------------------------------------------------------------

Consistent with the findings of the USDA-OIG audit, the NAS
committee concluded that some sored horses were not being identified
during inspections. The committee's observation from evaluating the
inspection videos was that DQPs are inconsistent in applying diagnostic
techniques. During palpation, DQPs ``showed large variations in the
technique used to palpate the forelimbs from the carpus to the
fetlock--from an absent to a very cursory palpation of limited areas at
the palmar surface of the distal limb, with minimal attention given to
the dorsal surface of the limb.'' \23\ DQPs were also at times observed
in the videos gripping the leg too tightly, which may inhibit responses
to limb palpation. By comparison, APHIS VMOs are required to practice a
standard procedure that involves palpating the limb in a consistent
pattern and pressure, resulting in more accurate soring diagnoses.
---------------------------------------------------------------------------

\23\ NAS, A Review of Methods for Detecting Soreness in Horses,
page 31.
---------------------------------------------------------------------------

The NAS committee further observed that, in many instances, DQPs
did not adequately observe the horse's movement and posture. For
example, from its review of inspection videos, the committee noted that
DQPs often did not require the horse to take enough steps to determine
whether soring or lameness was present.
At most shows, inspections are performed by a DQP employed by an
HIO; less often, by an APHIS VMO, or in some instances, by both. The
NAS committee reviewed the training requirements for DQPs in the
regulations and noted that not only are DQPs not required to be
veterinarians, but that they receive instruction from trainers who are
not required to be veterinarians. APHIS VMOs, by contrast, have
veterinary degrees and receive extensive medical training in
identifying dermatologic, physiological, and behavioral indications of
soring in horses.
The NAS committee strongly recommended that the use of DQPs for
inspections under the current regulations be discontinued and that only
veterinarians, preferably with equine experience, be allowed to examine
horses, as is done in other equine competitions.\24\ The committee
added that if APHIS continues to use third-party inspectors, they
should be veterinarians or other equine industry professionals who are
screened for potential conflicts of interest and trained by APHIS to
properly inspect horses for soring. The committee also stated that
consequences for performing substandard examinations should be strictly
enforced, and that reports of substandard performance and enforcement
warning letters should come from APHIS, not HIOs. We agree with these
recommendations and propose in this rulemaking that qualified
inspectors be screened and trained by APHIS, and that inspectors be
veterinarians as availability allows. We discuss further below how we
propose to amend the regulations consistent with these recommendations.
---------------------------------------------------------------------------

\24\ NAS, A Review of Methods for Detecting Soreness in Horses,
page 4.
---------------------------------------------------------------------------

As we noted, the NAS committee also evaluated the scar rule
criteria in Sec. 11.3 as a means of diagnosing soring in horses. Since
its 1979 inclusion in the regulations, interpretations of what the scar
rule means and how to apply it have long led to disagreements among
APHIS, veterinary organizations, and the gaited horse industry. As we
noted, the NAS study resulted from a shared

[[Page 56932]]

desire by both the industry and APHIS that inspection protocols be
based on sound scientific principles that can be applied consistently.
The NAS committee analyzed the scar rule with this in mind, and based
on their work made recommendations for revising the scar rule language
that we believe will make it much easier to understand and apply and
more accurate as a tool to diagnose soring. We discuss NAS analysis of
the scar rule and explain how its findings have helped to shape our
proposed changes to it under ``Dermatologic Changes and the Scar
Rule.''
The NAS study is the latest major effort to evaluate from a
scientific perspective the causes of soring, the current and emerging
methods available to diagnose it, and the effectiveness of the current
Horse Protection regulations to eliminate the practice. The evidence in
the NAS and OIG reports and the Horse Protection program inspection
data indicate that many DQPs lack either the correct training or the
willingness, or both, to diagnose sored horses, with one outcome--
soring persists as an incentive to gain competitive advantage and sored
horses continue to appear at shows, exhibitions, sales, and auctions.

Proposed Changes to the Regulations

The changes we propose to make to 9 CFR part 11 include a
comprehensive reorganization of the part. We have provided a derivation
table below to show where we propose to move content currently in the
regulations. Current sections are to the left. Sections where content
will be moved and revised are listed on the right side of the table,
along with new and removed sections:

------------------------------------------------------------------------
Where addressed in proposed
Existing regulations rule
------------------------------------------------------------------------
Sec. 11.1 Definitions................ Sec. 11.1 Definitions
(revised).
Sec. 11.2 Prohibitions concerning Sec. 11.6 Prohibitions
exhibitors. concerning exhibitors
(revised).
Sec. 11.3 Scar rule.................. Sec. 11.6(a)(22) Prohibitions
concerning exhibitors
(revised).
Sec. 11.4 Inspection and detention of Sec. 11.8 Inspection and
horses. detention of horses (revised).
Sec. 11.5 Access to premises and Sec. 11.9 Access to premises
records. and records (revised).
Sec. 11.6 Inspection space and Sec. 11.10 Inspection space
facility requirements. and facility requirements
(revised).
Sec. 11.6(c) (Non-interference with Sec. 11.3 Non-interference
APHIS personnel). with APHIS representatives and
HPIs (revised).
Sec. 11.7 Certification and licensing Sec. 11.19 Authorization and
of designated qualified persons (DQPs). training of Horse Protection
Inspectors (new section
added). (Sec. 11.7 would be
reserved for future use but
its content would be removed.)
Sec. 11.11 (new section added
and reserved).
Sec. 11.12 (new section added
and reserved).
Sec. 11.20(a) Responsibilities and Sec. 11.13(a) Horse shows,
liabilities of management. horse exhibitions, horse
sales, and horse auctions at
which the management does not
utilize an APHIS
representative or Horse
Protection Inspector. (new
section added and revised).
Sec. 11.20(b) Responsibilities and Sec. 11.13(b) Horse shows,
liabilities of management. horse exhibitions, horse
sales, and horse auctions at
which the management utilizes
an APHIS representative or
Horse Protection Inspector.
(new section added and
revised).
Sec. 11.21 Inspection procedures for Section removed, as HIOs would
designated qualified persons (DQPs).. no longer train DQPs in
inspection procedures.
Sec. 11.22 Records required and Sec. 11.14 Records required
disposition thereof.. and disposition thereof (new
section added and revised).
Sec. 11.22, Sec. 11.24(a) Records Sec. 11.14(a) Records
required and disposition thereof; required and disposition
Reporting by management. thereof (new section added and
(Sec. 11.24(b) is an obsolete revised).
requirement and not retained in
proposed regulations).
Sec. 11.23(a) Inspection of records Sec. 11.15 Inspection of
(Sec. 11.23(b) pertains to training records (new section added and
DQPs and would not be retained in revised).
proposed regulations).
Sec. 11.16 Reporting by
management (new section
added).
Sec. 11.25 Minimum penalties to be Section removed.
assessed and enforced by HIOs that
license DQPs.
Sec. 11.40 Prohibitions and Sec. 11.17 Requirements
requirements concerning persons concerning persons involved in
involved in transportation of certain transportation of certain
horses. horses (new section added and
revised).
Sec. 11.18 Utilization of
inspectors (new section
added).
Sec. 11.41 Reporting required of Section removed.
horse industry organizations or
associations (pertains to HIOs and not
retained in proposed regulations).
------------------------------------------------------------------------

Substantive changes we propose to make in part 11 include:
<bullet> Removing the requirement that DQPs be trained and licensed
by HIOs and removing the term DQPs from the regulations. Instead, APHIS
would screen and train qualified persons to be Horse Protection
Inspectors, or HPIs. APHIS would authorize these applicants, preferably
veterinarians, as HPIs after screening them for potential conflicts of
interest and conducting training.
<bullet> Removing all regulatory requirements pertaining to HIOs,
as HIOs would no longer have any regulatory responsibilities specific
to them. APHIS would assume program administration and development, HPI
training, and HPI disciplinary actions as necessary to enforce the Act
and regulations. Services contracted between HIOs and event management,
such as supplying judges and handling show logistics, would not be
affected.
<bullet> Prohibiting any device, method, practice, or substance
applied to any horse that can hide or mask evidence of soring. (Current
prohibitions on other items and practices that can reasonably be
expected to cause or contribute to soring would be retained in the
regulations.)
<bullet> Prohibiting all action devices, pads, wedges, and
substances on the limbs or feet of Tennessee Walking Horses and racking
horses (with exceptions for approved therapeutic uses of pads, wedges,
and substances). An action device is any boot, collar, chain, roller,
beads, bangles, or other device which

[[Page 56933]]

encircles or is placed upon the lower extremity of the leg of a horse
in such a manner that it can either rotate around the leg, or slide up
and down the leg so as to cause friction, or which can strike the hoof,
coronet band or fetlock joint.
<bullet> Replacing the scar rule with language that more accurately
describes visible dermatologic changes indicative of soring, and
removing the requirement that such changes be bilateral.
<bullet> Requiring the management of any horse show, exhibition,
sale, or auction that elects to utilize an APHIS representative or HPI
to choose and appoint an additional HPI if more than 100 horses are
entered in the event.
<bullet> Requiring the management of any horse show, exhibition,
sale, or auction that elects to utilize an APHIS representative or HPI
to inspect horses to have at least one farrier physically present if
more than 100 horses are entered in the event, or if there are 100 or
fewer horses to have a farrier on call within the local area to be
present if requested by an APHIS representative or HPI. Farriers would
not be required for shows that do not utilize an inspector.
<bullet> Adding new reporting and recordkeeping requirements for
management of all horse shows, exhibitions, sales, and auctions covered
under the Act. These include retaining records for 90 days of any horse
allowed to show under therapeutic treatment, informing APHIS and
reporting event information at least 30 days in advance of the event,
and notifying APHIS of changes to event information at least 15 days in
advance of the event. These requirements are intended to prevent
disqualified persons and horses from participating in HPA-covered
events and to give APHIS sufficient time to schedule an APHIS
representative to inspect at the event, if requested.
To restructure part 11, we propose to reserve current Sec. Sec.
11.2 and 11.7 and remove Sec. Sec. 11.20, 11.21, 11.22, 11.23, 11.24,
11.25, 11.40, and 11.41 from the regulations. Requirements for event
management recordkeeping, records inspection, and reporting included in
Sec. Sec. 11.20, 11.22, 11.23, and 11.24, as well as requirements for
transportation of horses in Sec. 11.40, would be included in new
sections we propose.
Our proposed changes to the regulations are detailed below.

Definitions

We would make changes to several terms and definitions in Sec.
11.1 that reflect our proposed changes to the Horse Protection program.
We would amend the definition of action device by including
``beads'' and ``bangles'' to the illustrative list of devices included
under the definition. We are including these devices because they can
encircle the leg and move with the horse, striking the skin or creating
friction.
We would revise the definition for Administrator by adding U.S.
mail and email addresses for sending mail to the Administrator of
APHIS.
We would remove the definition for APHIS Show Veterinarian and
revise the definition of APHIS representative to mean any employee or
official of APHIS. The definition of APHIS Show Veterinarian currently
means the APHIS veterinarian responsible for the immediate supervision
and conduct of the Department's activities under the Act at any horse
show, horse exhibition, horse sale or horse auction.
The current definition of APHIS representative is any employee of
APHIS, or any officer or employee of any State agency who is authorized
by the Administrator to perform inspections or any other functions
authorized by the Act, including the inspection of the records of any
horse show, horse exhibition, horse sale or horse auction. We propose
to revise this term to mean ``any employee or official of APHIS.''
APHIS representatives would include qualified full-time and
intermittent VMOs employed and trained by APHIS to inspect horses for
soring. HPIs would not be considered to be APHIS representatives under
this proposed definition because they are not employees of APHIS and
not compensated by the Agency, but rather by the show management that
contracts their services.
We would add a definition for the term custodian, which would mean
any person who presents a horse for inspection at any horse show,
exhibition, sale, or auction. We note that a person acting as custodian
may typically perform additional roles, such as owner, exhibitor,
seller, or transporter. Also, the custodian would have to be able to
provide required information about the horse as required in part 11. We
are proposing adding this term in order to define the term custodian
more clearly.
We propose to add the term day(s) to Sec. 1.1 and define it to
mean business days, i.e., days other than weekends and Federal
holidays. In several instances, the regulations require the submission
of reports or records with a period of days, and we wish to clarify
that weekends and Federal holidays are not included within that day
count.
The current definition of Designated Qualified Person is ``a person
meeting the requirements specified in Sec. 11.7 of this part who has
been licensed as a DQP by a horse industry organization or association
having a DQP program certified by the Department and who may be
appointed and delegated authority by the management of any horse show,
horse exhibition, horse sale or horse auction under section 4 of the
Act to detect or diagnose horses which are sore or to otherwise inspect
horses and any records pertaining to such horses for the purposes of
enforcing the Act.''
We are proposing to remove the term Designated Qualified Person or
DQP and its definition, as well as all regulatory requirements in the
regulations pertaining to them. We propose instead that APHIS will
screen, train, and authorize persons qualified to conduct inspections
of horses, devices, and records for the purposes of determining
compliance with the Act at horse shows, exhibitions, sales, and
auctions. We propose to refer to these qualified persons as Horse
Protection Inspectors (HPIs), which would be authorized by APHIS
pursuant to proposed Sec. 11.19 and appointed by management of the
event. Accordingly, we propose to include a definition for Horse
Protection Inspector in the regulations, included below.
We would add the term event manager and define it to mean the
person who has been delegated primary authority by a sponsoring
organization for managing a horse show, exhibition, sale, or auction.
An individual event manager would need to be designated even if the
event is managed by a team of persons. We are proposing this definition
in order to clarify management responsibility.
The term horse industry organization or association is currently
defined as ``an organized group of people, having a formal structure,
who are engaged in the promotion of horses through the showing,
exhibiting, sale, auction, registry, or any activity which contributes
to the advancement of the horse.'' We would remove the term horse
industry organization or association and its definition, as we propose
to remove all regulatory requirements under the Act pertaining to these
groups, including requirements for certification of DQP programs,
recordkeeping, and other requirements assigned to them. As we note
above, HIOs supply other services to shows and events not subject to
regulation, including registering participants and coordinating event
logistics, supplying show judges, and promoting events. Under this
proposal they could continue contracting with events to perform these
services.

[[Page 56934]]

We would add the term Horse Protection Inspector (HPI) to mean a
person meeting the qualifications in proposed Sec. 11.19 whom the
Administrator has authorized as an HPI and who may be appointed and
delegated authority by the management of any horse show, horse
exhibition, horse sale or horse auction under section 4 of the Act to
detect or diagnose horses which are sore or to otherwise inspect horses
and any records pertaining to such horses for the purposes of detecting
or diagnosing soring. Under proposed Sec. 11.16(a)(6), event
management wishing to have an APHIS representative conduct inspections
at their event are required to notify APHIS at least 30 days in advance
of the event.
The current regulations define inspection to mean ``the examination
of any horse and any records pertaining to any horse by use of whatever
means are deemed appropriate and necessary for the purpose of
determining compliance with the Act and regulations. Such inspection
may include, but is not limited to, visual examination of a horse and
records, actual physical examination of a horse including touching,
rubbing, palpating and observation of vital signs, and the use of any
diagnostic device or instrument, and may require the removal of any
shoe, pad, action device, or any other equipment, substance or
paraphernalia from the horse when deemed necessary by the person
conducting such inspection.'' To emphasize that any means of
determining compliance with the Act and regulations must be approved by
APHIS, we would revise the definition of inspection to include the
words ``any visual, physical, and diagnostic means approved by APHIS to
determine compliance with the Act and regulations.'' The proposed
definition would follow the current definition in that such inspection
``may include, but is not limited to, visual inspection of a horse and
review of records, physical examination of a horse, including touching,
rubbing, palpating, and observation of vital signs, and the use of any
diagnostic device or instrument, and may require the removal of any
shoe or any other equipment, substance, or paraphernalia from the horse
when deemed necessary by the professional conducting such inspection.''
We propose to add a definition for local area, which we would
define as the area within a 10-mile radius of the horse show,
exhibition, sale, or auction. We would add this term in conjunction
with proposed Sec. 11.13(b)(2), which would require event management
to have a farrier on call within the local area if requested by an
APHIS representative or HPI appointed by management and 100 or fewer
horses are entered in the horse show, exhibition, sale, or auction.
When over 100 horses are entered in an event, management would be
required to have a farrier onsite unless they elected to enforce the
HPA without recourse to an inspector. We invite comments on this
definition as to whether it is reasonable with respect to the
geographical distribution of farriers, as well as comments on the costs
associated with having a farrier at the shows and on call.
The term lubricant in the current definitions means ``mineral oil,
glycerine or petrolatum, or mixtures exclusively thereof, that is
applied to the limbs of a horse solely for protective and lubricating
purposes while the horse is being shown or exhibited . . . .'' We would
remove the definition for lubricant and prohibit the use of any
substances on the limbs of all Tennessee Walking Horses and racking
horses. Most substances applied to horses at shows and exhibitions,
such as skin and hair conditioners, are not implicated in soring, but
they can be used to diminish signs of soring. As we explain under the
proposed changes to prohibitions concerning exhibitors, a strong
association exists between applications of substances and soring in
these particular breeds.
We propose to retain and revise the current definition of
management, which means ``any person or persons who organize, exercise
control over, or administer or are responsible for organizing,
directing, or administering any horse show, horse exhibition, horse
sale or horse auction and specifically includes, but is not limited to,
the sponsoring organization and show manager.'' We would remove ``show
manager'' from this definition, as we propose removing that term
elsewhere in the regulations, and replace it with ``event manager,'' a
term which, as we note above, we propose adding to the regulations.
A definition of participate would be added to Sec. 1.1 to mean
engaging in any activity, either directly or through an agent, beyond
that of a spectator in connection with a horse show, horse exhibition,
horse sale, or horse auction, and includes, without limitation,
transporting, or arranging for the transportation of, horses to or from
equine events, personally giving instructions to exhibitors, being
present in the warm-up or inspection areas or in any area where
spectators are not allowed, and financing the participation of others
in equine events.
Person in the regulations means ``any individual, corporation,
company, association, firm, partnership, society, organization, joint
stock company, or other legal entity.'' We propose to revise the
definition by adding ``State or local government agency'' to the list
of illustrative examples. We are proposing this change to highlight
that State and local government agencies also fall under the definition
of person in the regulations.
As currently defined in the regulations, Regional Director means
``the APHIS veterinarian who is assigned by the Administrator to
supervise and perform official duties of APHIS under the Act in a
specified State or States.'' We propose removing the term from Sec.
11.1 because APHIS representatives performing Horse Protection duties
are no longer organized and managed by region.
Sponsoring organization in the current regulations means ``any
person under whose immediate auspices and responsibility a horse show,
horse exhibition, horse sale, or horse auction is conducted.'' We
propose to revise the current definition to mean ``any person or entity
whose direction supports and who assumes responsibility for a horse
show, horse exhibition, horse sale, or horse auction that has, is, or
will be conducted.'' We are making this change to clarify that an
``entity'' is also included under the definition, and to ensure that
any person or entity supporting and assuming responsibility for such an
event also falls under the definition. Our proposed revision also
clarifies that the sponsoring organization's responsibility applies
whether the event in question has already occurred or is yet to occur.
We also propose to add a definition for the term therapeutic
treatment to mean the treatment of disease, injury, or disorder by or
under the supervision of a person licensed to practice veterinary
medicine in the State in which such treatment was prescribed. We are
proposing to define this term to ensure that therapeutic practices
applied to any horse covered under the regulations are administered or
overseen by qualified veterinarians only.

Prohibitions Concerning Exhibitors

Current Sec. 11.2, ``Prohibitions concerning exhibitors,'' lists
general and specific prohibitions for any device, method, practice, or
substance used on any horse at any horse show, exhibition, or horse
sale or auction if such use causes or can reasonably be expected to
cause such horse to be sore. We propose to move those prohibitions from
Sec. 11.2

[[Page 56935]]

to a revised Sec. 11.6 and reserve Sec. 11.2 for future use.

Non-Interference With APHIS Representatives

Current Sec. 11.3 contains the ``scar rule,'' which refers to the
presence of certain types of lesions on the horse's pastern and fore
pastern suggesting that a horse has been sored. Horses that do not meet
the scar rule criteria are considered to be sore and are subject to all
prohibitions of the Act.
We propose to remove the scar rule from this section and include
the revised language in proposed Sec. 11.6(a)(22). A full discussion
of the proposed changes to the scar rule is included under
``Dermatologic Changes and the Scar Rule,'' below.
The language we propose to add to revised Sec. 11.3 is based on
current Sec. 11.6(c) and amended to prohibit persons from assaulting,
resisting, opposing, impeding, intimidating, threatening, or
interfering with APHIS representatives or HPIs, or in any way
influencing attendees of a horse show, exhibition, sale, or auction to
do the same. Persons guilty of such violations may be held criminally
liable and referred to the U.S. Department of Justice for prosecution.
These proposed amendments strengthen regulatory protections for the
safety of both APHIS representatives and HPIs appointed by management
and engaged in duties at the events listed, as well as the safety of
horses and attendees.

Prohibitions for Disqualified Persons

Section 11.4 of the current regulations includes requirements
regarding inspection of horses by APHIS representatives, as well as
detention of horses for inspection if an APHIS representative has
probable cause to believe that a horse is sore. We propose to revise
Sec. 11.4 to include provisions regarding the status of persons whom
USDA has disqualified from showing, exhibiting, selling, or auctioning
horses. Provisions for inspection and detention of horses, which
currently comprise this section, would be moved to a new Sec. 11.8.
The proposed text for Sec. 11.4 would indicate that any person
disqualified from participating in any horse show, exhibition, sale, or
auction shall not show, exhibit, or enter any horse, directly or
indirectly through any agent, employee, corporation, partnership, or
other device, and shall not judge, manage, or otherwise participate in
events covered by the Act within the period during which the
disqualification is in effect. We would add this provision to the
regulations to ensure that prohibitions are in place to address
attempts by disqualified persons to continue participating in events
listed above either directly or indirectly through the aid of other
identities or persons.

Appeal of Inspection Report

Section 11.5 currently includes requirements for the management of
any horse show, exhibition, or horse sale or auction to provide APHIS
representatives with unlimited access to the grandstands and all other
premises of any horse show, exhibition, or horse sale or auction,
including any adjacent areas under their direction, for the purpose of
inspecting horses or records. Management must also provide an adequate,
safe, and accessible area for the visual inspection and observation of
horses. This section also requires persons having custody of any horse
at any horse show, exhibition, or horse sale or auction to admit any
APHIS representative or DQP appointed by management to all areas of
barns, compounds, horse vans, horse trailers, stables, or other grounds
or related areas at any horse show, exhibition, or horse sale or
auction, for the purpose of inspecting any such horse at reasonable
times.
We propose changing the heading of Sec. 11.5 to read ``Appeal of
inspection report'' and moving provisions for access to premises and
records to a new Sec. 11.9. Revised Sec. 11.5 would provide that any
horse owner, trainer, exhibitor, custodian or transporter may appeal
inspection report findings all or in part to the Administrator. The
appeal would require a written statement contesting the inspection
finding(s) and include any documentation or other information in
support of the appeal. The appeal would have to be received by the
Administrator, preferably by electronic mail, or by U.S. mail,\25\
within 21 business days of receipt of the inspection report. The
Administrator would send a final decision, either via electronic mail
or U.S. mail, to the person requesting the appeal.
---------------------------------------------------------------------------

\25\ Email address: <a href="/cdn-cgi/l/email-protection#b3dbdcc1c0d6c3c1dcc7d6d0c7dadcddf3c6c0d7d29dd4dcc5"><span class="__cf_email__" data-cfemail="6f07001d1c0a1f1d001b0a0c1b0600012f1a1c0b0e41080019">[email&#160;protected]</span></a>. Appeals may also
be sent via U.S. mail to APHIS, 2150 Centre Ave., Bldg. B, MS 3W-11,
Fort Collins, CO 80547.
---------------------------------------------------------------------------

We note that in current Sec. 11.25, each HIO is required to
provide a process in its rulebook, subject to APHIS approval, for
alleged violators of the regulations to appeal penalties resulting from
inspections. However, as HIOs would no longer play a role in
inspections, proposed Sec. 11.5 includes a process for alleged
violators to appeal penalties resulting from inspections conducted by
APHIS representatives or HPIs appointed by management.

Pre-Show Review of a Finding of Soring

In response to the 2016 proposed HPA rule, APHIS received some
comments raising due process concerns. The comments included a request
that APHIS develop and implement a pre-show process whereby owners and
trainers may contest and seek immediate review of a finding that a
horse is sore from a decision-maker, and the suggestion that when USDA
finds that a horse is sore after being passed by a DQP, the horse
should be allowed to be shown until there is a final decision in the
matter.
The HPA vests in management the responsibility to disqualify or
prohibit a horse from being shown, exhibited, sold, or auctioned
following a determination by an inspector that the horse is sore. See
15 U.S.C. 1823(a). Specifically, the statute and regulations require
management to (among other acts) disqualify a horse in instances where
(1) the horse is sore or (2) management is notified by a DQP or APHIS
representative that the horse is sore. Id.; see Sec. 11.20(b)(1) of
the regulations (management ``shall immediately disqualify'' a horse
identified by the DQP to be sore or otherwise known by management to be
sore). Given this nexus between management's decision and an
inspector's findings, and in light of the due process concerns raised
in comments on the 2016 proposed rule, we seek additional public
comment on potential ways to resolve disputes arising from a
determination of soring following inspection, including possible
options for resolving such disputes before a show takes place.
We are concerned that the suggestions by commenters on the 2016
proposed rule are not consistent with the intent or language of the Act
itself. For instance, if a horse determined by an inspector to be sore
is allowed to be shown until a final decision is made, this could
undermine Congress's two primary goals in enacting the Act: To
eliminate the cruel and inhumane practice of horse soring and to ensure
fair competition at horse shows and exhibitions by not permitting sored
horses to unfairly compete with horses that are not sore. See 15 U.S.C.
1822. Moreover, it would directly contradict paragraph (a) of section
1823 of the Act, which requires that ``[t]he management of any horse
show or horse exhibition shall disqualify any horse from being shown or
exhibited (1) which is sore or (2) if the management has been notified
by [an inspector] that the horse is sore.''

[[Page 56936]]

Section 1824 of the Act underscores that management must disqualify
such horses by listing the failure to do so as an ``unlawful act''
under the Act. Section 1825 of the Act authorizes fines, imprisonment
and civil penalties for violations of section 1824. Finally, Congress
found that ``horses shown or exhibited which are sore, where such
soreness improves the performance of such horse, compete unfairly with
horses which are not sore.'' 15 U.S.C. 1822(2).
In addition to these statutory concerns, the process envisioned by
past commenters, or other lengthy processes that could not be completed
before a scheduled show or exhibition, as they are currently operated,
could strongly incentivize owners to contest findings of soring in
order to delay as long as possible any possible disqualification. This
could undermine the intent and requirements of the Act for the reasons
discussed above.
One possible solution could be to conduct the inspections far
enough in advance of the exhibition or show to allow for an opportunity
to be heard before the event. However, given the current structure of
horse shows and exhibitions, as well as the need to ensure that horses
are not sored following an inspection and before a show, this proposal
would require significant internal changes and cooperation from the
horse industry. Most horse shows and exhibitions are 1-day events that
are set up during the day and take place in the early evening.
Inspections take place approximately 30 minutes before the horse enters
the arena, and immediately following the inspection, the horse enters a
supervised warm-up area and does not leave that area until the horse
enters the arena to perform. This is to ensure that the horse's
conditions do not change following its inspection and before the horse
enters the show ring. Under the current structure, there is
insufficient time to conduct a review process between the inspection
and the horse being exhibited or shown, and it would require a
significant change in show and exhibition practices, and possible
restructuring of the industry itself, to allow such a process to take
place. It would also entail a significant reallocation of existing
APHIS resources. We may need to deploy more inspectors to shows, have
them arrive earlier, develop monitoring protocols to ensure horses are
not sored following inspection but before the event, and provide both
personnel and direct and indirect support costs to the review process.
To that end, in order to assess the feasibility of conducting
inspections in advance of a show or exhibition in a manner that would
afford a pre-show review process while still ensuring that the horse is
not subsequently sored after inspection, we request specific public
comment on the following:
<bullet> Could pre-show inspections still take place in the same
physical area as the show or exhibition? If not, where should they take
place?
<bullet> How early should pre-show inspections take place, in order
to ensure time for a review process?
<bullet> How should the health and safety of the horse be monitored
after the inspection takes place in order to ensure that the horse is
not subsequently sored? Who would be responsible for monitoring to
ensure that the horse is not subsequently sored?
<bullet> What type of review process would be afforded to contest a
finding that a horse is sore? Who would decide these matters? What
parties should be involved? Do the parties need to be physically
present at the site of the show or exhibition?
<bullet> What timing mechanisms would need to be in place to ensure
the review process can be completed in time for the horse to show, if
the initial inspection is overturned? What actions should occur in the
event that the review process is not completed before the show or
exhibition?
<bullet> How would any pre-show review process implicate or
interact with the existing reinspection process currently located in
section 11.4(h), as proposed for amendment and relocation at section
11.8(h)?
In addition to the alternative that we have identified to address
the issue, we acknowledge that there may be other means of addressing
the issue that we are not aware of. To that end, we request public
comment regarding other possible alternatives, including consideration
of regulatory bodies, statutory authorities, or incentives or
disincentives, including the withholding or forfeiture of prize money,
that could be applied to address the issue.

Prohibited Items and Practices

Current Sec. 11.2 contains prohibitions on the use of certain
action devices, equipment, pads, substances, and practices on horses at
any horse show, exhibition, sale or auction covered under the Act.
The prohibitions are intended to pertain to the devices, practices,
and substances that are used either to sore horses directly or
contribute to the act of soring (an example of the latter being a hoof
pad that hides a sharp object). Reaction to the pain caused by soring
results in the exaggerated chest-high gait prized in certain classes at
Tennessee Walking horse and racking horse shows. Chains and other
devices, especially those that are heavy or have sharp or rough edges,
can inflict pain and exacerbate soring through repeated strikes to the
leg while the horse performs, particularly if irritating substances
have also been applied to the skin. Pads that cause a horse's foot to
strike the ground at an unnatural angle can also induce pain and soring
over time, as can heavy pads and horseshoes. Substances can be used to
mask the pain a sore horse feels long enough to pass inspection, while
dyes and other substances can hide lesions and other signs of soring on
the skin. As reflected in the inspection statistics presented above,
soring is diagnosed almost exclusively at events featuring Tennessee
Walking horses and racking horses that perform in pads and action
devices. By comparison, APHIS and DQP inspections at flat-shod events
in which horses do not wear pads and action devices rarely find soring
violations.
We note that the current regulations do not prohibit all devices--
for example, in Sec. 11.2(b), certain rollers, chains, and bell boots
weighing 6 ounces or less are permitted, as are certain types of pads.
In proposed Sec. 11.6(b), we allow for the restricted use of some
items so that events featuring breeds other than Tennessee Walking
Horses and racking horses may continue using them. APHIS recognizes
that action devices and pads are sometimes used for purposes that do
not cause soring during training of Morgans, American Saddlebreds, and
many other gaited breeds. Applying light chains or other devices on the
pastern, for example, creates a sensory, or proprioceptive, reaction
that can stimulate front and rear hoof height without pain, and that on
rear hooves can increase the range of motion.\26\ While all horse
breeds are subject to provisions of the Act, soring imparts little to
no advantage to competitors at these shows, as the gaits on which most
breeds are evaluated are noticeably distinct from the exaggerated ``big
lick'' step featured at many Tennessee Walking horses and racking horse
events.\27\
---------------------------------------------------------------------------

\26\ Clayton, Hilary, ``Rehabilitation for Horses.'' Paper
presented at American Association of Equine Practitioners, July
2014.
\27\ We acknowledge that many owners of Tennessee Walking horses
and racking horses show their horses in ``flat shod'' classes,
meaning they do not use the action devices and thick pads associated
with soring and required as a condition of entry in performance
classes.

---------------------------------------------------------------------------

[[Page 56937]]

The restrictions on pads, devices, and activities listed in current
Sec. 11.2(b) make no distinction between breeds that are often
diagnosed as sore--Tennessee Walking Horses and racking horses--and
other gaited breeds that are not known to be sored. As currently
permitted under Sec. 11.2(b), many breeds perform in light chains
under six ounces and low pads that elevate the heel by less than an
inch. We considered prohibiting all non-therapeutic pads, action
devices, substances, and other practices for all breeds at all covered
events, but in doing so we would unfairly conflate those breeds that do
not sore for competitive advantage with those that do.
Accordingly, we propose to revise Sec. 11.6(b) by including a more
restrictive list of prohibitions specific to Tennessee Walking Horses
and racking horses. We base our reasons for establishing prohibitions
specific to these breeds on several points. As we have noted above, our
records show that the clear majority of horses diagnosed by APHIS
representatives and DQPs as being sore are Tennessee Walking Horses and
racking horses, specifically those that participate in pads and action
devices in certain competitions favoring a high-stepping, accentuated
gait. Insofar as APHIS directs most of its compliance inspections
toward Tennessee Walking Horse and racking horse events, it follows
that our records would show that almost all noncompliances we report
are among these two breeds. However, based on our informed knowledge
about the practices of all breeds performing or exhibiting in the
United States, we know that soring in breeds other than Tennessee
Walking Horses and racking horses confers no significant performance
advantage and is therefore rarely if ever practiced. APHIS-Animal Care
officials remain updated on the activities of all breed organizations
and investigate any allegations or reports suggesting that violations
of the Act are occurring within any breed. We invite public comment on
any observations persons may have regarding soring in other breeds.
Further, APHIS has observed from its experience in administering
and enforcing the Act and regulations (including through compliance
inspections, investigations, enforcement of alleged violations,
oversight of industry-based inspection programs, and outreach to the
horse industry) that a relationship continues to exist between the use
of certain permitted devices and instances of soring, notably among
Tennessee Walking Horses and racking horses, when used alone or in
conjunction with prohibited substances.
We acknowledge that at many, if not most, shows featuring Tennessee
Walking Horses and racking horses, the majority of entrants are
exhibiting or performing with so called ``flat-shod'' horses (those
that do not normally use the pads and action devices this proposed rule
would seek to prohibit). Some shows featuring Tennessee Walking Horses
and racking horses are entirely flat-shod in nature and already
prohibit pads and action devices. We note that in 2022, almost 35,000
flat shod entries were inspected by DQPs and APHIS representatives
combined, with a compliance rate above 99 percent. We do not consider
such shows to be high risk with respect to noncompliance with the Act
and regulations.

Action Devices, Boots, Collars

Under Sec. 11.2(b), the regulations currently allow the use of a
chain or other action device on each limb of a horse if the device
weighs 6 ounces or less. Action device is currently defined as ``a
boot, collar, chain, roller, or other device which encircles or is
placed upon the lower extremity of the leg of a horse in such a manner
that it can either rotate around the leg, or slide up and down the leg
so as to cause friction, or which can strike the hoof, coronet band or
fetlock joint.'' In the Definitions section, we proposed adding beads
and bangles to the illustrative list of action devices, as these
devices encircle the leg, and strike the leg or create friction during
movement.
Equine veterinarians on the NAS study committee noted that abnormal
skin changes seen on the pasterns of Tennessee Walking Horses are not
observed on other breeds of horses such as Arabians, American
Saddlebreds, and Morgans, which sometimes train with action devices but
do not usually wear them when competing. Moreover, action devices used
on other breeds typically are of lower weight than those used on
Tennessee Walking Horses and racking horses. The committee also noted
that Tennessee Walking Horses are often trained with action devices
weighing in excess of the 6-ounce action devices currently allowed for
competition and concluded that the use of heavier or more cumbersome
devices in training may be more likely to contribute to the formation
of skin lesions.\28\
---------------------------------------------------------------------------

\28\ A Review of Methods for Detecting Soreness in Horses, page
81 (see footnote 21).
---------------------------------------------------------------------------

NAS' observations regarding action devices and their role in soring
are consistent with those of an older but still relevant study \29\
conducted at the Auburn University School of Veterinary Medicine from
1978 to 1982, which evaluated the effects of acute and chronic
inflammatory responses on the front and hind limbs of horses. The
findings of that study suggest a strong relationship between soring and
the combined use of action devices and substances. Horses were
exercised for 2-3 weeks wearing 2-, 4-, and 6-ounce chains, after which
it was determined that the use of such chains for a duration of 2 to 3
weeks ``did not produce any harmful effects to the horses' legs, with
exception to some loss of hair from 6-ounce chains in the pastern
areas.'' However, in another phase \30\ of the study, it was determined
that the combined use of prohibited substances and chains on the
pasterns of horses caused lesions, tissue damage, and visible
alterations of behavior consistent with soring. Although this phase of
the study used 10-ounce chains, 4 ounces heavier than what is currently
allowed, if a horse may be trained sore using 10-ounce chains (or other
weight and/or substance combinations) and then shown in 6-ounce chains,
the use of a 6-ounce chain may reasonably be expected to cause the
horse to experience pain while walking, trotting, or otherwise
moving.\31\
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\29\ Thermography in Diagnosis of Inflammatory Processes in
Horses in Response to Various Chemical and Physical Factors: Summary
of the Research from September 1978 to December 1982. Submitted to
the U.S. Department of Agriculture by Dr. Ram C. Purohit, Associate
Professor, School of Veterinary Medicine, Auburn University. The
study is available at the regulations.gov address included under
ADDRESSES or by contacting the individual listed under FOR FURTHER
INFORMATION CONTACT above.
\30\ Phase 7, ``Simultaneous Use of Chemical and Chains for
Soring Horses''.
\31\ The NAS study (page 81) also indicated that heavier chains
and other action devices are typically used when training Tennessee
Walking Horses.
---------------------------------------------------------------------------

Historically, prohibited substances such as caustic irritants have
been applied to the pasterns of some gaited breeds, most commonly
Tennessee Walking Horses and racking horses, until the skin is
sensitive and painful to the touch. This process typically takes
several days and completed before the horse enters the event grounds.
When the horse wears a chain or other action device while performing,
it strikes the treated skin, causing pain and a high stepping reaction.
Our observations from administering and enforcing the Act have
indicated that soring can and does occur in Tennessee Walking Horses
and racking horses with the use

[[Page 56938]]

of prohibited substances and/or action devices such as chains and
rollers of nearly any weight, including the 6-ounce weight limit
currently in the regulations.
Under proposed Sec. 11.6(a), ``General Prohibitions for All
Horses,'' we would continue to prohibit any action device, method,
practice, or substance to be used on any horse at any horse event
covered under the Act if such use causes or can reasonably be expected
to cause such horse to be sore or is otherwise used to mask previous
and/or ongoing soring.
Proposed Sec. 11.6(b) lists prohibitions that apply to all horses
at covered events but which allow for some devices used by some breeds
for purposes unrelated to soring, as discussed above.
Under Sec. 11.6(c)(1), we would prohibit all action devices on
Tennessee Walking Horses and racking horses, and in paragraph (c)(2)
prohibit all artificial extension of the toe length unless the horse
has been prescribed and is receiving therapeutic treatment using
artificial extension of the toe length. In proposed paragraph (c)(3) we
would prohibit all pads and wedges on any Tennessee Walking Horse or
racking horse at any horse show, exhibition, sale, or auction, unless
the horse has been prescribed and is receiving therapeutic treatment
using pads or wedges as approved in writing by a licensed veterinarian.
Finally, in proposed paragraph (c)(4), we would prohibit all substances
on the extremities above the hoof of any Tennessee Walking Horse or
racking horse entered for the purpose of being shown or exhibited,
sold, auctioned, or offered for sale in or on the grounds of any horse
show, horse exhibition, or horse sale or auction. Explanations for each
of these prohibitions is provided below.
In prior rulemakings, APHIS has received a range of comments from
members of the gaited horse industry, veterinary professional
organizations, animal advocates, and the general public regarding the
purposes and effects of such devices, and whether there are minimum
weights below which such devices will not cause lesions that constitute
soring. Our experience with enforcing the Act indicates that soring can
be induced when action devices are used alone or in combination with
prohibited substances. We welcome public comment, supported with
scientific data or other rigorous evidence, on the effects of action
devices used alone or in combination with other training methods.

Pads, Toe Extensions

Section 11.2(b)(8) of the current regulations prohibits pads or
other devices on yearling horses (horses up to 2 years old) that
elevate or change the angle of such horses' hooves in excess of 1 inch
at the heel. Altering the angulation of a horse's feet and legs can
cause painful lameness, soreness, and inflammation by transferring
concussive impact and weight-bearing pressures to joints and other
parts of the horse not normally subjected to these forces. Elevating
the foot using stacked hoof pads, or ``performance packages,'' can also
cause an increase in tension in the tendons leading to inflammation, as
can extra weight on the horse's foot. Additionally, elevating only the
front feet, as is typically done in Tennessee Walking Horse and racking
horse performance-class competitions using pads, ``causes an unnatural
angulation of the back and body of the horse, and changes the alignment
of the shoulder muscles, the vertebrae, and the pelvis, all of which
are then subject to stress, irritation, and inflammation.'' (See 53 FR
14780 (April 26, 1988)).
Research undertaken in the above-cited Auburn study indicated that
raising a horse's heels through the use of pads alone resulted in
swollen flexor tendons and signs of inflammation. The same study also
found the ability to detect pressure soring (i.e., the illegal
application or use of bolts, screws, blocks, hoof packing material, and
other methods of pressure) through visual and physical inspection of
the soles of horses' hooves is limited because pads obscure the solar
surface of the foot.
Under proposed Sec. 11.6(c)(3), we would prohibit all pads and
wedges on any Tennessee Walking Horse or racking horse at any horse
show, exhibition, sale, or auction, unless the horse has been
prescribed and is receiving therapeutic treatment involving the use of
pads or wedges as approved in writing by a licensed veterinarian.
APHIS' experience at Tennessee Walking Horse and racking horse events
indicates that soring continues to occur through the use of performance
packages that can introduce unnatural angulations of the foot or hide
signs of pressure shoeing. However, we would not have this specific
provision become effective until 270 days after promulgation of a final
rule, as it takes approximately 6 to 8 months for a padded horse to
become acclimated to being flat-shod (i.e., walking and performing
without pads).
We invite comments on whether this is an appropriate timeframe for
transitioning to a prohibition on pads, but underscore that this
prohibition is necessary in order for APHIS to enforce the provisions
of the Act. APHIS inspection data shows that of the alleged HPA
violations documented at events from FY 2017 through 2021, 94 percent
involved horses wearing pads.\32\ This is not to imply that pads were
directly responsible for soring these horses. Rather, the performance
classes in which soring confers the greatest benefit (an unnatural
high-stepping gait) require that the horse wear pads.
---------------------------------------------------------------------------

\32\ Inspection data compiled by APHIS Horse Protection program
from FY 2017 through 2021.
---------------------------------------------------------------------------

In proposed Sec. 11.6(b)(9) and (13), we would continue to allow
the restricted use of pads at shows without Tennessee Walking Horses
and racking horses, provided that the pads or other devices on horses
up to 2 years old that elevate or change the angle of such horses'
hooves are not in excess of 1 inch at the heel, and would also continue
to allow the use of pads made of leather, plastic, or a similar pliant
material.
In proposed Sec. 11.6(c)(2), we would also prohibit all artificial
extensions of toe length on Tennessee Walking horses and racking
horses, unless the horse has been prescribed and is receiving
therapeutic treatment. Toe extensions can be used to sore horses by
increasing stress on certain tendons and ligaments. However, similar to
what we indicated regarding pads, prohibition of artificial extensions
would not become effective until 270 days after promulgation of a final
rule, as it takes approximately 6 to 8 months to take the steps needed
to re-acclimate a Tennessee Walking horse or racking horse accustomed
to going in such extensions to walking and performing without them. As
the practice has non-soring uses in other breeds, such as to make safe
adjustments to a horse's gait, we will retain the provision in Sec.
11.2(b)(11) to allow artificial extension of the toe length on horses
other than Tennessee Walking horses or racking horses, whether
accomplished with pads, acrylics or any other material or combinations
thereof, provided that it not exceed 50 percent of the natural hoof
length as measured from the coronet band, at the center of the front
pastern along the front of the hoof wall, to the distal portion of the
hoof wall at the tip of the toe.

Substances

Under the general prohibitions in current Sec. 11.2(a), a
substance must not be used on any horse at any covered event,
regardless of breed, if such use causes or can reasonably be expected
to cause such horse to be sore.

[[Page 56939]]

Numerous substances are used on horses at shows, exhibitions, and
sales events for legitimate purposes, among them shampoos, polishes,
conditioners, oils, and insect repellents, as well as lubricants that
allow action devices to slide on the leg with less friction. For this
reason, the specific prohibitions in current Sec. 11.2(b) do not
include substances. However, as we mentioned above, at Tennessee
Walking horse and racking horse events, we have observed from our
experience enforcing the regulations (including through compliance
inspections, investigations, enforcement actions, and industry
oversight and outreach) that chains, rollers, and similar devices are
sometimes used with caustic substances to induce painful lesions and
inflammation. Other prohibited substances sometimes detected on horses
include masking and numbing agents that temporarily block the pain of
soring so inspectors cannot detect pain upon inspection. Specifically,
local anesthetic agents such as benzocaine and lidocaine are used to
deter detection of soring upon evaluation, as well as dyes and paints
to cover evidence of soring.
Even lotions such as skin softeners and conditioners are implicated
in soring at Tennessee Walking horse and racking horse events. While
these substances do not directly cause soring, their intended use is to
diminish the effects of soring. Such substances are used so that when
soring is induced, the skin is softer and does not react as badly, thus
decreasing the chance of inflammation and a subsequent scar rule
violation.
Current Sec. 11.2(c) prohibits all substances on the extremities
above the hoof of any Tennessee Walking Horse or racking horse while
being shown, exhibited, or offered for sale at any covered event,
except lubricants such as glycerin, petrolatum, and mineral oil, or
mixtures of these. Moreover, these lubricants must be furnished by
event management and can only be applied after inspection.
However, data collected by APHIS from 2017 through 2022 \33\
indicates that, in each of those years, substantial numbers of horses
tested by APHIS were positive for prohibited substances, with nearly
all of them being Tennessee Walking horses and racking horses. In FY
2018, among horses that wore performance packages (action devices and
pads), 144 horses were positive out of 194 tested, and over the 6-year
period the average rate of positives was more than 40 percent.\34\
Furthermore, during this 6-year period, masking and numbing agents
constituted about 36 percent of the prohibited substances detected on
all horses tested. Of the horses testing positive for prohibited
substances, about 90 percent wore performance packages while being
shown or exhibited in performance classes. The data from this period
shows that the Tennessee Walking Horse and racking horse communities
continue to use prohibited substances to induce, hide, or mask soring
despite the current ban.
---------------------------------------------------------------------------

\33\ HIO collected samples are included in FY 2020 through FY
2022 data and were funded by APHIS.
\34\ See Table 3 presented above in the section ``Evaluation of
the Horse Protection Program.''
---------------------------------------------------------------------------

Therefore, in proposed Sec. 11.6(c)(4), we would prohibit all
substances on the extremities above the hoof of any Tennessee Walking
Horse or racking horse entered for the purpose of being shown or
exhibited, sold, auctioned, or offered for sale in or on the grounds of
any horse show, exhibition, sale, or auction, regardless of the
substance's composition. Lubricants would no longer be allowed to be
used with action devices as we also propose to prohibit such devices on
these breeds. Given the wide range of substances that can induce or
numb pain, or otherwise hide evidence of soring, we consider a
prohibition of all substances at shows with Tennessee Walking Horses
and racking horses to be the best means to reduce incidences of soring
in accordance with the HPA.

Stewarding

In proposed new paragraph (b)(21), we would prohibit stewarding of
any breed of horse during inspection for soreness. Stewarding involves
the use of whips, cigarette smoke, or other threatening actions or
paraphernalia to distract a horse from feeling leg pain when palpated
during inspection or to otherwise impede the inspection process.
We would also prohibit holding of reins less than approximately 18
inches from the bit shank. The earlier-cited NAS study committee's
observation of 61 inspection videos revealed numerous incidents of
stewarding during the standing inspection that were not dealt with by
the inspector, including holding the reins closer than 18 inches from
the bit, often just below or on the shank. In some cases, the committee
observed that the horse was restrained with constant tension, often
with the reins held in an upward direction, or the reins were pulled
sharply. The committee noted that these restraint tactics can create a
distraction during the palpation procedure by inducing pain in the oral
cavity.\35\
---------------------------------------------------------------------------

\35\ A Review of Methods for Detecting Soreness in Horses, page
7 (see footnote 21).
---------------------------------------------------------------------------

Dermatologic Changes and the Scar Rule

Under current Sec. 11.3 of the regulations, all horses \36\
subject to the ``scar rule'' that do not meet certain criteria are
considered sore and are subject to all prohibitions of section 5 of the
Act. Paragraph (a) states that ``the anterior and anterior-lateral
surfaces of the fore pasterns (extensor surface) must be free of
bilateral granulomas, other bilateral pathological evidence of
inflammation, and, other bilateral evidence of abuse indicative of
soring including, but not limited to, excessive loss of hair.'' A
footnote is also appended to paragraph (a). It defines ``granuloma'' as
``any one of a rather large group of fairly distinctive focal lesions
that are formed as a result of inflammatory reactions caused by
biological, chemical, or physical agents.''
---------------------------------------------------------------------------

\36\ The regulation states that it applies to all horses born on
or after October 1, 1975, but as this now includes every living
horse it no longer needs to be part of the regulations.
---------------------------------------------------------------------------

Paragraph (b) of the scar rule states that ``the posterior surfaces
of the pasterns (flexor surface), including the sulcus or `pocket' may
show bilateral areas of uniformly thickened epithelial tissue if such
areas are free of proliferating granuloma tissue, irritation, moisture,
edema, or other evidence of inflammation.''
In paragraph (a)(2) of Sec. 11.21, the requirements for inspection
of horses by DQPs include an examination to determine whether the horse
meets the scar rule criteria. Paragraph (a)(2) states that ``[w]hile
carrying out the procedures set forth in this paragraph, the DQP shall
also inspect the horse to determine whether the provisions of Sec.
11.3 of this part are being complied with, and particularly whether
there is any evidence of inflammation, edema, or proliferating
granuloma tissue.''
The scar rule is not a part of the Horse Protection Act. In its
current form, the scar rule was proposed in 1978 and added to the
regulations in 1979.\37\ According to the 1978 proposal, the scar rule
was initially developed in 1974 by representatives of the horse
industry and the Department as part of the industry's self-policing
program against

[[Page 56940]]

soring.\38\ The proposal notes that as a result of that program, a
distinction between the types of scars found on younger and older
horses gradually emerged; younger horses ``do not bear the scars,
granulomas, and callouses indicative of soring that are often found on
older horses.'' \39\ The Department therefore stated in the proposal
that it ``believes it will benefit all concerned parties by adopting
and enforcing a national uniform criteria for applying the `scar
rule'.'' \40\
---------------------------------------------------------------------------

\37\ The proposal was published in the Federal Register on April
28, 1978 (43 FR 18514-18531) and the final rule was published on
April 27, 1979 (44 FR 25172-25184) .
\38\ See also In Re: F. Dale Rowland & Denise Rowland., 52
Agric. Dec. 1103, 1126 (U.S.D.A. Aug. 25, 1993) (citing Horse
Protection Enforcement, 1979: Annual Report of the Secretary of
Agriculture to the President of the United States Senate and the
Speaker of the House of Representatives (July 1980) at 4).
\39\ 43 FR 18514-18531, page 18519.
\40\ Idem.
---------------------------------------------------------------------------

The Department added that the scar rule it was proposing would
allow for normal changes in the skin due to friction and permit
thickening of the epithelial layer of the skin in the pastern area,
comparing it to ``a callous on a workman's hands,'' and would also
allow for moderate loss of hair on the pastern caused by the friction
caused by an action device.\41\ Notably, the proposal emphasized that
the scar rule must be applied bilaterally and that the scarring must be
identical on both legs, so that horses bearing scars from accidental
injury to one leg are not unfairly penalized as being sore, being that
``[t]he chances are extremely remote that any horse would ever injure
both forelegs in an identical manner with resulting identical scars in
the anterior or posterior pastern area of each foreleg.'' \42\
---------------------------------------------------------------------------

\41\ Idem.
\42\ Idem.
---------------------------------------------------------------------------

In 2001, APHIS issued a guide \43\ regarding how to apply the scar
rule during inspections. The scar rule as currently written requires
that for a horse to be in compliance with the scar rule, there must be
no proliferating granuloma tissue, irritation, moisture, edema, or
other evidence of inflammation indicative of soring visible in highly
specific locations on or near the anterior pasterns. The guide
emphasized that ``[b]ecause of the difference between what is allowed
on the front and back of the pastern, it is important to know where the
boundaries of the anterior and posterior surfaces are located,'' and
provided specific instructions for determining the boundaries for
purposes of determining regulatory compliance. Once the boundaries are
determined, the anterior and posterior surfaces of the horse's pasterns
must be determined to be entirely free of scars indicative of soring
but the posterior surface of the pastern is allowed to show uniformly
thickened skin that is free of inflammation, with no redness, swelling,
pain, or oozing. The guide also emphasized that for there to be a scar
rule violation, skin abnormalities must be found on both front
pasterns, although they do not have to be identical in appearance or
location to be a violation.
---------------------------------------------------------------------------

\43\ USDA-APHIS, Understanding the Scar Rule, February 2001.
This guide was removed from Agency circulation (and its website)
when the Agency updated its training materials on the scar rule.
---------------------------------------------------------------------------

The 2001 guide indicates that APHIS' understanding of scarring had
evolved since 1978, such that the Agency now understood that a horse
need not bear identical scars on both pasterns in order to be
bilaterally scarred. Its issuance also indicates that APHIS believed
guidance was warranted at the time to ensure that inspections for
violations of the scar rule were correctly and uniformly conducted.
Despite the issuance of the 2001 guide, and the development of
subsequent training that supplanted the guide, the scar rule itself
remains unchanged in practice from its inclusion in the regulations 44
years ago. Since that time, however, advances in veterinary science as
well as technical innovations in imaging and diagnostics have improved
our understanding of how soring occurs and our ability to detect it.
(As the NAS study notes, even the term ``scar rule'' has become
something of a misnomer, with the obvious bilateral soring lesions and
scars seen prior to passage of the Act in 1970 only rarely observed
today.)
However, as technical advancements during the intervening period
have improved our ability to detect soring, so too have technical
advancements improved violators' ability to evade detection of scarring
during inspections. APHIS, veterinary organizations, and the horse
industry continue to see violators developing new ways to obscure the
gross dermatologic indicia of soring, leaving little or no visible
lesions on the leg and making it difficult to disqualify a horse under
the scar rule as currently written. Violators, for example, have used
lasers to smooth out irregularly thickened skin or evidence of chronic
inflammation on one pastern of a horse that has been sored bilaterally,
leaving only one leg with obvious signs of soring (unilateral), thus
allowing the horse to avoid being disqualified under the current
bilateral requirement of the scar rule. Requiring that lesions be
bilateral in order for a horse to be considered sore under the scar
rule has made it less effective against the innovations devised to
evade it. In short, it is now clear to the Agency that a horse need not
gross dermatologic indicia of soring bilaterally in order for the horse
to be sore.
Further, although the existing scar rule specifies regions on the
limb (extensor and flexor surfaces, sulcus) on which the scarring must
occur for a violation of the scar rule to occur, as the issuance of the
2001 guide illustrates, the boundaries of the regions may not always be
clearly and uniformly understood in the absence of guidance. Moreover,
an abnormality indicative of soring is not enforceable as a scar rule
violation if it appears outside these regions.
The NAS study also found the term ``granuloma'' to be imprecise in
its regulatory use as one of the visible signs of soring during a gross
inspection. The study notes that medically, the term is defined as ``an
inflammatory lesion composed of specific types of leukocytes arranged
in a particular way,'' and indicates that only a microscopic evaluation
of the tissue in question will establish the presence of granulomatous
inflammation.\44\ This stands in contrast to the regulatory definition
within the scar rule itself, which defines ``granuloma'' much more
broadly as ``any one of a rather large group of fairly distinctive
focal lesions that are formed as a result of inflammatory reactions
caused by biological, chemical, or physical agents.'' The regulatory
definition of the term includes lesions and other effects of
inflammation caused by soring that are visible to the naked eye upon
inspection of the limb. The medical definition of ``granuloma''
describes pathology that can only be viewed microscopically. The study
suggested that the scar rule be revised to limit evidence to
dermatologic conditions that are observable during gross examination
(an examination by an inspector that involves palpating the horse,
observing its movements, and looking for visible (not microscopic)
abnormalities on the skin indicative of soring).
---------------------------------------------------------------------------

\44\ A Review of Methods for Detecting Soreness in Horses, page
83.
---------------------------------------------------------------------------

Given the foregoing considerations, we propose updating the scar
rule. Accordingly, what had been known as the scar rule would be moved
to proposed paragraph (b)(22) ofproposed Sec. 11.6, and would be
updated to the following: ``The forelimbs and hindlimbs of the horse
must be free of dermatologic conditions that are indicative of soring.
Examples of such dermatologic conditions include, but are

[[Page 56941]]

not limited to, irritation, moisture, edema, swelling, redness,
epidermal thickening, loss of hair (patchy or diffuse) or other
evidence of inflammation. Any horse found to have one or more of the
dermatologic conditions set forth herein shall be presumed to be `sore'
and be subject to all prohibitions of section 6 (15 U.S.C. 1825) of the
Act.''
As to the likelihood of accidental abrasions and other skin
irregularities being confused for soring, changes in the skin due to
soring are fairly distinctive when compared to accidental injuries.
When horses are repeatedly sored, the skin on their pasterns will
develop thickening that usually is in a ridge pattern and diffuse
around the posterior and/or anterior pasterns. An injury is usually a
discrete, well-demarcated cut or scar that can be differentiated from
the skin changes seen with soring.
In our proposed change to the scar rule, we removed all references
to scars and scarring, which is supported by the NAS study's conclusion
that ``scars have not been documented microscopically in Tennessee
Walking Horses that have been found to be sore. A scar is an area of
tissue where the normal components and organization of the tissue have
been lost and replaced by fibrous connective tissue.'' \45\
---------------------------------------------------------------------------

\45\ A Review of Methods for Detecting Soreness in Horses, page
84.
---------------------------------------------------------------------------

We also propose removing all requirements that violations of the
proposed Sec. 11.6(b)(22) be bilateral in nature given the ability of
violators to obscure signs of soring on at least one limb. We also note
that it has long been the Agency's understanding, as evidenced in the
2001 guide, that soring may result in dermatologic indicia that is not
uniform. Notwithstanding the current scar rule's language, we consider
this proposed revision to be consistent with the Act itself. In the
definition of ``sore'' in Section 2 of the Act (15 U.S.C. 1821), a
horse is considered sore if the agents and other devices listed in the
definition and used in the soring are applied, inflicted, injected, or
used to or on ``any limb of a horse.'' This definition, which is
fundamental to understanding the Act's requirements regarding soring,
clearly allows for diagnoses of soring regardless of the number of
limbs involved. Therefore, a horse may be sore if a single limb has
been subjected to the use of one of the devices, substances, or
practices enumerated in the statutory definition of the term ``sore.''
The Agency acknowledges that section 6 of the Act (15 U.S.C.
1825(d)) states that ``[i]n any civil or criminal action to enforce
this chapter or any regulation under this chapter a horse shall be
presumed to be a horse which is sore if it manifests abnormal
sensitivity or inflammation in both of its forelimbs or both of its
hindlimbs.'' However, APHIS considers this provision to mean that a
horse must be considered presumptively sore during enforcement actions
if it manifests such bilateral sensitivity or inflammation. It does not
preclude the Agency from considering a horse sored based on evidence of
unilateral soring; again, such an interpretation would cut against the
definition of sore within the Act and render the clause ``any limb of
the horse'' to be without meaning.\46\
---------------------------------------------------------------------------

\46\ See Duncan v. Walker, 533 U.S. 167, 174 (2001) (``It is our
duty `to give effect, if possible, to every clause and word of a
statute.' '' (quoting United States v. Menasche, 348 U.S. 528, 538-
39 (1955) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152
(1883))).
---------------------------------------------------------------------------

Regarding our proposal to remove terms describing specific regions
of the limb in the revision, we note that the definition of ``sore'' in
the Act also supports this change. The definition accounts for soring
being applied, inflicted, injected, or used on any limb of a horse
without limiting it to any specific regions of the limb. Moreover,
APHIS has found evidence of soring that can be identified through gross
examination outside of these specific regions, and, as the 2001 guide
illustrates, these regions may not be readily identified in all cases
without guidance.
We also propose to remove references to ``granulomas'' and
``proliferating granuloma tissue.'' Although the current footnoted
definition of ``granuloma'' in Sec. 11.3 describes visible lesions and
inflammation as scar rule violations, we are removing the term to
prevent continued confusion with its medical definition as elaborated
on in the NAS study.
Finally, we would remove the reference to ``uniformly thickened
epithelial tissue'' on the flexor surface of the pasterns and cite the
NAS study as support for this change. The NAS committee reviewed an
unpublished but peer-reviewed evaluation (``Stromberg report'') \47\ of
136 microscopic biopsies of skin samples taken from 68 Tennessee
Walking Horses that had been disqualified for violations of the scar
rule during the Tennessee Walking Horse National Celebration events of
2015 and 2016. The evaluation, conducted by two veterinary anatomic
pathologists,\48\ examined 136 pastern biopsies (right and left pastern
from each horse). Their evaluation of the biopsies indicated abnormal
findings of variable epidermal hyperplasia in the form of acanthosis
(thickening of the stratum spinosum layer of the epidermis) and
variable degrees of hyperkeratosis (thickening of the stratum corneum
layer of the epidermis). However, they concluded that beyond these
abnormalities, there was no evidence of scar tissue or granulomatous
inflammation in the biopsies and therefore concluded there was no basis
or proof of a scar rule violation.
---------------------------------------------------------------------------

\47\ Stromberg, P. 2017. Summary report about soring in
Tennessee walking horses. Unpublished manuscript: <a href="https://www.nationalacademies.org/documents/embed/link/LF2255DA3DD1C41C0A42D3BEF0989ACAECE3053A6A9B/file/D3016359C83283E8AABAF73D5E24301E7BA78A03B4B3?noSaveAs=1">https://www.nationalacademies.org/documents/embed/link/LF2255DA3DD1C41C0A42D3BEF0989ACAECE3053A6A9B/file/D3016359C83283E8AABAF73D5E24301E7BA78A03B4B3?noSaveAs=1</a>. The
manuscript was provided to the NAS committee by a member of the
Tennessee Walking Horse industry.
\48\ Dr. Paul Stromberg, of the Ohio State University, and Dr.
Lynne Cassone, of the University of Kentucky.
---------------------------------------------------------------------------

The pathologists subsequently provided 24 pairs of the pastern
samples from their study to Dr. Pamela E. Ginn, a NAS study committee
member and board-certified veterinary pathologist, for further review.
While Dr. Ginn's initial observations on reviewing the pastern biopsies
are similar to those documented by Drs. Stromberg and Cassone in the
Stromberg report, Dr. Ginn interprets the significance of the lesions
differently. Drawing from her evaluation, the NAS committee reports
that the changes of hyperkeratosis and acanthosis, which were prominent
in the biopsy specimens, do not normally occur without a previously
inflicted injury on the pasterns. While these changes are recognized as
secondary, chronic lesions, and do not provide clear evidence of the
initial injury to the skin leading to these changes, they correlate
with the grossly detectable lesions of irregular epidermal thickening
known as lichenification, a pathologic change most often caused by
rubbing, scratching, or other repeated trauma to the skin.\49\ In other
words, while the Stromberg report found no granuloma in the tissue
microscopically and therefore concluded that there was no evidence of a
violation, Dr. Ginn's evaluation on behalf of NAS found other
pathological changes indicative of repeated trauma that correlate to an
unnatural thickening of the skin visible on gross examination.
Furthermore, NAS' evaluation found that the absence of granulomatous
and scar tissue does not rule out a scar rule violation.
---------------------------------------------------------------------------

\49\ A Review of Methods for Detecting Soreness in Horses, page
82.

---------------------------------------------------------------------------

[[Page 56942]]

The NAS study recommended that the scar rule language should
reflect what inspectors see on sored horses during gross examination.
We agree with these conclusions and have proposed a set of diagnostic
criteria that retains the visual elements of the scar rule detectable
by gross examination.
Finally, we wish to note that APHIS does not entirely agree with
the NAS study in its evaluation of the scar rule. While the study has
provided APHIS with findings instrumental to our proposed changes to
the scar rule, we disagree with NAS' statement regarding its
enforceability, excerpted here:

The language of the scar rule is based on the assumptions that
certain lesions exist microscopically, that those lesions can be
detected by gross clinical dermatologic exam, and that the terms
used in the scar rule were used appropriately. In addition, it is
assumed that the rule can be interpreted and applied in a consistent
manner by APHIS veterinary medical officers VMOs and DQPs tasked
with examining horses for scar rule violations. None of these
assumptions hold true today, and therefore the rule as written is
not enforceable.\50\
---------------------------------------------------------------------------

\50\ A Review of Methods for Detecting Soreness in Horses, page
82.

We hold that the current scar rule is in fact enforceable. One of
the NAS study's primary bases for considering the scar rule
``unenforceable'' is that it relies on a definition of ``granuloma''
that differs from the commonly accepted medical definition. The use of
a regulatory term of art with a defined definition that is different
from its ordinary meaning is, however, a well-established and
defensible regulatory practice. Additionally, while we agree with the
study that, without training and guidance, inspectors could differ in
identifying regions of a horse covered by the scar rule, the study
ignores the remedial measures that can be used to address this possible
discrepancy, such as the issuance of the 2001 guide referenced above.
Again, the use of guidance to address issues of possible inconsistent
interpretation of the regulations is a well-accepted and long-standing
regulatory practice that does not render the regulations themselves
``unenforceable.'' Finally, as we stated above, NAS indicated that the
pathological changes found in the biopsy specimens they examined
correlate with grossly detectable lesions of irregular epidermal
thickening known as lichenification, most often caused by repeated
trauma. We note that the grossly detectable (i.e., visible upon gross
examination) lichenification is actually equivalent to the non-
uniformly thickened epithelial tissue APHIS inspectors document during
inspections for soring.
In short, although the APHIS Horse Protection program and the NAS
study use different terminology, both agree that microscopic,
pathological changes to the skin indicative of soring correlate with a
visible thickening detectable on gross examination. Such an examination
obviously does not reveal microscopic changes in pathology indicative
of soring, but it does not need to do so because of the visible changes
that correlate with this pathology.

Other Proposed Changes to Prohibitions Concerning Exhibitors

Below is a table outlining other prohibitions for any horse at any
horse show, horse exhibition, or horse sale or auction that we would
move from current Sec. 11.2 to proposed Sec. 11.6.

------------------------------------------------------------------------
Prohibitions concerning exhibitors in Location in proposed Sec.
current Sec. 11.2 11.6 and substantive changes
------------------------------------------------------------------------
General prohibitions
------------------------------------------------------------------------
Paragraph (a).......................... Paragraph (a), with proposed
additional language
specifically prohibiting
substances or practices that
``mask previous and/or ongoing
soring.'' Certain substances
can hide or cause skin
lesions, and practices such as
stewarding or otherwise
distracting a horse during
inspection can mask behavioral
evidence of pain.
------------------------------------------------------------------------
Specific prohibitions
------------------------------------------------------------------------
Paragraph (b)(1) (Certain beads, Paragraph (b)(2).
bangles, rollers).
Paragraph (b)(2) (Chains weighing more Paragraph (b)(3).
than 6 ounces).
Paragraph (b)(3) (Chains not of uniform Paragraph (b)(4).
size, or twisted or doubled chains).
Paragraph (b)(4) (Chains with drop Paragraph (b)(5).
links).
Paragraph (b)(5) (More than one action Paragraph (b)(1).
device per limb of horse).
Paragraph (b)(6) (Chains, rollers with Paragraph (b)(6).
rough edges).
Paragraph (b)(7)(i) (Boots, collars Paragraph (b)(7).
with sharp edges).
Paragraph (b)(7(ii) (Boots, collars Paragraph (b)(8).
weighing more than 6 ounces).
Paragraph (b)(8) (Pads changing the Paragraph (b)(9).
angle of hoof in excess of 1 inch at
the heel.).
Paragraph (b)(9) Any weight on yearling Paragraph (b)(10).
horses, except a keg or similar
conventional horseshoe, and any
horseshoe on yearling horses that
weighs more than 16 ounces.
Paragraph (b)(10) Artificial extension Paragraph (b)(11).
of the toe length, whether
accomplished with pads, acrylics or
any other material that exceeds 50
percent of the natural hoof length.
Paragraph (b)(11) (Toe length that does Paragraph (b)(12).
not exceed the height of the heel by 1
inch or more.).
Paragraph (b)(12) Pads that are not Paragraph (b)(13).
made of leather, plastic, or other
pliant material.
Paragraph (b)(13) Any object or Paragraph (b)(14).
material inserted between the pad and
the hoof other than acceptable hoof
packing.
Proposed additional prohibition
on acrylic and hardening
substances as hoof packing.
These substances, when
hardened, can cause hoof pain
upon stepping.

[[Page 56943]]

Paragraph (b)(14) Single or double Paragraph (b)(15).
rocker-bars on the bottom surface of
horseshoes which extend more than 1\1/
2\ inches back from the point of the
toe.
Paragraph (b)(15) (Metal hoof bands Paragraph (b)(16).
placed less than 1\1/2\ inch below the
coronet band).
Paragraph (b)(16) (Metal hoof bands Paragraph (b)(17).
that can be easily and quickly
loosened or tightened by hand).
Paragraph (b)(17) (Action device or any Paragraph (b)(18).
other device that strikes the coronet
band of the foot of a horse, except
soft bell boots).
Paragraph (b)(18) (Shoeing a horse, or Paragraph (b)(19).
trimming a horse's hoof in a manner
that will cause such horse to suffer).
Proposed additional prohibition
on paring of frog or bruising
of hoof. These actions can
cause the hoof to be overly
sensitive to pain.
Paragraph (b)(19) (Lead or other Paragraph (b)(20).
weights attached to the outside of the
hoof wall, the outside surface of the
horseshoe, or any portion of the pad
except the bottom surface within the
horseshoe).
Paragraph (b)(21) Proposed new
paragraph to prohibit
stewarding (described above).
Paragraph (b)(22) Proposed new
paragraph on dermatologic
changes (described above).
------------------------------------------------------------------------

In proposed Sec. 11.6(d), we include time restrictions on workouts
and performances for 2-year-old Tennessee Walking Horses and racking
horses. These restrictions are moved from current Sec. 11.2(d). We
would prohibit show or exhibition workouts or performances of 2-year-
old Tennessee Walking Horses and racking horses, as well as working
exhibitions of 2-year-old Tennessee Walking Horses and racking horses
(horses eligible to be shown or exhibited in 2-year-old classes) at
horse sales or auctions, that exceed a total of 10 minutes continuous
workout or performance without a minimum 5-minute rest period between
the first such 10-minute period and the second such 10-minute period,
and more than two such 10-minute periods per performance, class, or
workout.
We would also include the horse-related information requirements
under Sec. 11.2(e) in proposed Sec. 11.6(e). These requirements
currently prohibit failing to provide information or providing any
false or misleading information required by the Act or regulations or
requested by APHIS representatives, by any person that enters, owns,
trains, shows, exhibits, transports or sells or has custody of, or
direction or control over any horse shown, exhibited, sold, or
auctioned, or entered for the purpose of being shown, exhibited, sold,
or auctioned at any horse show, exhibition, sale, or auction.
We would require that this provision apply to requests by HPIs
appointed by management as well as APHIS representatives. This
information includes, but is not limited to, information concerning the
name, any applicable registration name and number, markings, sex, age,
and legal ownership of the horse; the name and address of the horse's
training and/or stabling facilities; the name and address of the owner,
trainer, rider, custodian, any other exhibitor, or other legal entity
bearing responsibility for the horse; the class in which the horse is
entered or shown; the exhibitor identification number; and any other
information reasonably related to the identification, ownership,
control, direction, or supervision of any such horse. In determining
whether a horse is sore, it is important for an inspector, whether an
APHIS representative or an HPI, to have access to these records,
especially if a question of material fact arises regarding whether an
observable condition on the horse is the result of soring or some other
condition, malady, or infirmity known to the horse's owner and its
custodians. We would add to paragraph (e) that failure to provide the
information requested may result in termination under Sec. 11.13.

Inspection and Detention of Horses

Section 11.4(a) currently includes the requirement that each horse
owner, exhibitor, trainer, or other person having custody of, or
responsibility for, any horse at any horse show, exhibition, or sale or
auction allow any APHIS representative to reasonably inspect such horse
at all reasonable times and places the APHIS representative may
designate. We would move this requirement to proposed Sec. 11.8(a) and
include HPIs appointed by management to make such a designation.
We would also retain the requirement in current Sec. 11.4(b), in
which an APHIS representative must notify the owner, exhibitor,
trainer, or other person having custody of or responsibility for a
horse at any horse show, exhibition, or sale or auction that APHIS
desires to inspect the horse, and that it must not be moved from the
horse show, exhibition, or sale or auction until such inspection has
been completed and the horse has been released by an APHIS
representative. We would include this requirement in proposed Sec.
11.8(b) and add that HPIs may also make the notification that APHIS
desires to inspect the horse. We would retain the provision that only
an APHIS representative could officially release the horse as this is
decision is made on behalf of the Department.
Paragraph (c) of proposed Sec. 11.8 would state that for the
purpose of inspection, testing, or taking of evidence, APHIS
representatives may detain for a period not to exceed 24 hours any
horse, at any horse show, exhibition, or sale or auction, which is sore
or which an APHIS representative has probable cause to believe is sore.
Such detained horse may be marked for identification and any such
markings must not be removed by any person other than an APHIS
representative. This requirement is moved from current Sec. 11.4(c).
We do not propose to provide HPIs with this authority as it is an
official decision to detain property, in which the APHIS representative
is acting on behalf of the Department.
In proposed Sec. 11.8(d), we would include requirements for
detained horses, moved from current Sec. 11.4(d), which state that
detained horses are required to be kept under the supervision of an
APHIS representative or secured under an official USDA seal or seals in
a horse stall, horse trailer, or other facility with limited access. In
addition, APHIS must have at least one representative present in the
immediate detention area when a horse is being held in detention. The
official USDA

[[Page 56944]]

seal or seals may not be broken or removed by any person other than an
APHIS representative, unless the life or well-being of the horse is in
danger by fire, flood, windstorm, or other dire circumstances that are
beyond human control, the horse needs immediate veterinary care that
its life may be in peril before an APHIS representative can be located,
or the horse has been detained for the maximum 24-hour detention
period, and an APHIS representative is not available to release the
horse. As with the proposed provision on detaining horses, we also
consider detaining a horse to be an official decision requiring an
APHIS representative to act on behalf of the Department.
In proposed Sec. 11.8(e), we would include from current Sec.
11.4(e) the requirement that the owner, exhibitor, trainer, or other
person having custody of or responsibility for any horse detained by
APHIS for further inspection, testing, or the taking of evidence be
allowed to feed, water, and provide other normal custodial and
maintenance care, such as walking and grooming, for the detained horse.
This would be allowed provided that such care is rendered under the
direct supervision of an APHIS representative. Additionally, the
regulations would allow any non-emergency veterinary care of the
detained horse provided that the use, application, or injection of any
drugs or other medication for therapeutic or other purposes is rendered
by a veterinarian in the presence of an APHIS representative and the
identity and dosage of the drug or other medication and its purpose is
furnished in writing to the APHIS representative prior to its use,
application, or injection. The use, application, or injection of such
drug or other medication must be approved by the APHIS representative.
This would be an official oversight function limited to officials
acting on behalf of the Department. Further, in retaining this
requirement from the current regulations, we would replace the term
``APHIS Show Veterinarian'' in Sec. 11.4(e)(2) with ``APHIS
representative'' for the reasons explained above under ``Definitions.''
We would also move to Sec. 11.8(f) the requirement from current
Sec. 11.4(f) that APHIS must inform the owner, trainer, exhibitor, or
other person having immediate custody of or responsibility for any
horse allegedly found to be in violation of the Act or the regulations
of such alleged violation or violations before the horse is released by
an APHIS representative. An HPI would be able to inform the person of
this information, although the decision to release the horse from
detention would have to be made by an APHIS representative.
Current Sec. 11.4(g) requires that the owner, trainer, exhibitor,
or other person having immediate custody of or responsibility for any
horse that an APHIS representative determines must be detained for
examination, testing, or taking of evidence, be informed after such
determination is made and must allow the horse to be immediately put
under the supervisory custody of APHIS or secured under official USDA
seal until the completion of the examination, testing, or gathering of
evidence, or until the 24-hour detention period expires. We propose to
retain this requirement and include it in Sec. 11.8(g), but to replace
``examination'' with ``inspection'' wherever it is used to make the
terminology more consistent with its use in other parts of the
regulations.
Current Sec. 11.4(h) contains provisions for requesting re-
inspection and testing by persons having custody of or responsibility
of horses allegedly found to be in violation of the Act or regulations.
Proposed Sec. 11.8(h), moved from Sec. 11.4(h), contains provisions
for re-inspection and testing and would extend authority to HPIs for
certain actions not requiring an official decision or determination.
Paragraph (h) would state that the owner, trainer, exhibitor, or other
person having custody of or responsibility for any horse allegedly
found to be in violation of the Act or regulations, and who has been
notified of such alleged violation by an APHIS representative or HPI as
stated in proposed Sec. 11.8(f), may request re-inspection and testing
of the horse within a 24-hour period. A re-inspection can only occur
under the following conditions: (1) A request is made to an APHIS
representative immediately after the horse has been inspected by the
representative or an HPI appointed by management and before the horse
has been removed from the inspection facilities; (2) an APHIS
representative determines that sufficient cause for re-inspection and
testing exists; and (3) the horse is maintained under APHIS supervisory
custody as prescribed in paragraph (d) of the section until such re-
inspection and testing has been completed. We would replace the term
``APHIS Show Veterinarian'' with ``APHIS representative'' throughout
Sec. 11.8(h) for the reasons explained above under ``Definitions.'' We
would also use the terms ``inspection'' and ``re-inspection'' rather
than ``examination'' and ``re-examination'' for consistency with the
regulations. In addition, proposed paragraph (i) would require that the
owner, exhibitor, trainer, or other person having custody of, or
responsibility for, any horse being inspected is required to render
such assistance, as the APHIS representative or HPI may request, for
purposes of the inspection.

Access to Premises and Records

Inspector access to premises and records is necessary to ensuring
that event management and participants are in compliance with the Act
and regulations. In proposed Sec. 11.9, we would include requirements
for managers to provide access to premises and records for inspection
and for exhibitors to provide access to barns, vans, trailers, stalls,
and other locations of horses at any horse show, exhibition, sale, or
auction. We would also extend all access to premises and records for
the purposes of inspection to HPIs appointed by management. These
requirements would be moved from current Sec. 11.5.
Paragraph (a)(1), moved from Sec. 11.5(a)(1), would state that the
management of any horse show, exhibition, or sale or auction shall,
without fee, charge, assessment, or other compensation, provide APHIS
representatives and HPIs appointed by management with unlimited access
to the grandstands, sale ring, barns, stables, grounds, offices, and
all other areas of any horse show, exhibition, or sale or auction,
including any adjacent areas under their direction, control, or
supervision for the purpose of inspecting any horses, or any records
required to be kept by regulation or otherwise maintained.
Proposed paragraph (a)(2) would state that the management of any
horse show, exhibition, sale or auction shall, without fee, charge,
assessment, or other compensation, provide APHIS representatives and
HPIs appointed by management with an adequate, safe, and accessible
area for the visual inspection and observation of horses. This
requirement is moved from Sec. 11.5(a)(2).
In proposed Sec. 11.9(b)(1), we would include the requirement from
current Sec. 11.5(b)(1) that each horse owner, trainer, exhibitor, or
other person having custody of or responsibility for any horse at any
horse show, exhibition, or sale or auction shall, without fee, charge,
assessment, or other compensation, admit any APHIS representative or
HPI appointed by management to all areas of barns, compounds, horse
vans, horse trailers, stables, stalls, paddocks, or other show,
exhibition, or sale or auction grounds or related areas at any horse
show, exhibition, sale, or auction, for the

[[Page 56945]]

purpose of inspecting any such horse, at any and all times.
Under proposed Sec. 11.9(b)(2), moved from current Sec.
11.5(b)(2), each owner, trainer, exhibitor, or other person having
custody of or responsibility for, any horse at any horse show,
exhibition, or sale or auction shall promptly present his or her horse
for inspection upon notification, orally or in writing, by any APHIS
representatives or HPIs appointed by management, that the horse has
been selected for inspection for the purpose of determining whether
such horse is in compliance with the Act and regulations.
These proposed requirements in Sec. 11.9 would not include
references to DQPs, a role which we propose to remove from the
regulations and replace with HPIs.

Inspection Space and Facility Requirements

Section 11.6 currently contains horse inspection space and facility
requirements for management of a horse show, exhibition, sale, or
auction. Under the requirements, management must provide sufficient
space and facilities for APHIS representatives to perform their duties
as prescribed by the Act and regulations. These requirements include
ensuring that APHIS representatives and HPIs appointed by management
who inspect horses are provided with a safe area (for example, a well-
defined inspection area where inspectors are free from potential harm)
to conduct inspections and protection from the elements, and that there
are separate waiting areas for horses awaiting inspection and horses
that the inspector determines should be detained. As noted in the NAS
study, designating an inspection area that has as few distractions as
possible will reduce the effect of the environment on the horse's
response to pain during examination.\51\ We would retain these
requirements under proposed Sec. 11.10.
---------------------------------------------------------------------------

\51\ A Review of Methods for Detecting Soreness in Horses, page
69.
---------------------------------------------------------------------------

In proposed Sec. 11.10(a)(1), moved from current Sec. 11.6(a), we
propose adding that the management of every horse show, exhibition,
sale, or auction is required to provide, when requested by APHIS
representatives or HPIs appointed by management, without fee, charge,
assessment, or other compensation, sufficient, well-lit space and
facilities in a convenient location to the horse show, exhibition,
sale, or auction arena, so they may carry out their duties under the
Act and regulations, whether or not management has received prior
notification or otherwise knows that such show, exhibition, sale, or
auction may be inspected by APHIS. We added to this provision that the
HPI can also make such requests.
In proposed Sec. 11.10(a)(2), event management would need to
provide protection from the elements of nature, such as rain, snow,
sleet, hail, and windstorms for the inspection area and other areas in
which APHIS representatives and HPIs appointed by management carry out
their duties. In current Sec. 11.6(b), this requirement is contingent
on whether an APHIS representative requests it, but the proposed
revision would require that protection from the elements be available
to all inspectors at all times, including HPIs. Protection from the
elements is needed in order to facilitate accurate inspections.
Proposed Sec. 11.10(a)(3), moved from Sec. 11.6(c), would require
that event management provide a means to control crowds or onlookers in
order that APHIS representatives and HPIs appointed by management may
carry out their duties safely and without interference. This
requirement is intended to protect inspectors (whether APHIS
representatives or HPIs appointed by management), staff, and
spectators, as well as horses.
Inspection for soreness in horses sometimes requires the use of
radiography and other technological equipment that must be connected to
an electrical power source. Proposed Sec. 11.10(a)(4), moved from
Sec. 11.6(d), would require that an accessible, reliable, and
convenient 110-volt electrical power source be available at the horse
show, exhibition, sale, or auction site. This provision has been
amended so that a site without electrical power is no longer an option
needing to be requested by APHIS. If fixed electrical service is not
available, event management would be required to provide other means
for electrical power such as a portable electric generator.
Finally, Sec. 11.10(a)(5) would require appropriate areas to be
provided adjacent to the inspection area for designated horses to wait
before and after inspection, as well as an area to be used for
detention of horses. An appropriate area would be one with sufficient
space for the horses and separated from onlookers. This requirement is
moved from current Sec. 11.6(e), amended to include separation from
onlookers.
We would add to proposed Sec. 11.10(b) a provision that, except
for the other persons listed below, only a management representative,
HPIs appointed by management, and APHIS representatives be allowed in
the warm-up and inspection area. Each horse in the designated warm-up
area may be accompanied by no more than three individuals, including
the person having immediate custody of or responsibility for the horse,
the trainer, and the rider. Each horse in the inspection area may only
be accompanied by the person having immediate custody of or
responsibility for the horse. No other persons would be allowed in the
warm-up or inspection areas without prior approval from an APHIS
representative or HPI appointed by management.
We are proposing this provision because our experience has shown
that people congregating in designated inspection and warm-up areas can
impede the ability of inspectors and APHIS representatives to perform
their duties, and could be used to attempt to intimidate inspectors or
event officials. Another safety concern is having large groups of
people massed in an area where multiple horses are warming up.

Responsibilities and Liabilities of Management

Under Sec. 11.20 of the current regulations, the management of a
horse show, exhibition, sale or auction that does not appoint a DQP to
conduct inspections is responsible for identifying all horses that are
sore or otherwise in violation of the Act or regulations, and must
disqualify or disallow any horses which are sore or otherwise in
violation from participating or competing in any horse show,
exhibition, sale, or auction. If event management does not appoint
qualified inspectors, management can be held liable for the failure to
disqualify a sore horse from participating in a covered event.\52\ If
management appoints a DQP to conduct inspections, management can only
be found liable for violations of the Act and regulations if they fail
to disqualify a horse that the DQP identifies as a sore horse and
notifies management accordingly.
---------------------------------------------------------------------------

\52\ 15 U.S.C. 1824(3).
---------------------------------------------------------------------------

Under this proposal, HPIs would replace the current role played by
DQPs. Management could also request that an APHIS representative
conduct inspections instead of an HPI. Under proposed Sec.
11.16(a)(6), management of a covered horse show, exhibition, sale, or
auction would have to contact APHIS at least 30 days in advance of the
event and announce their intention either to request an APHIS
representative or appoint an HPI to conduct inspections, or to have no
inspector, or to request a

[[Page 56946]]

variance if no APHIS representative or HPI is available.
In proposed Sec. 11.13(a), we would include requirements from
current Sec. 11.20(a), in that the management of any horse show,
exhibition, sale or auction which does not utilize an APHIS
representative or HPI is responsible for identifying all horses that
are sore or otherwise in violation of the Act or regulations, and must
disqualify or prohibit any horses which are sore or otherwise in
violation of the Act or regulations from participating or competing in
any horse show, exhibition, sale, or auction.
Under proposed Sec. 11.13(a), horses entered for sale or auction
at a horse sale or horse auction must be, as appropriate, identified as
sore or otherwise in violation of the Act or regulations prior to the
sale or auction and, as required by law, prohibited from entering the
sale or auction ring. Sore horses or horses otherwise in violation of
the Act or regulations that have been entered in a horse show or
exhibition for the purpose of show or exhibition must be identified and
disqualified prior to the show or exhibition. Any horses found to be
sore or otherwise in violation of the Act or regulations during actual
participation in the show or exhibition must be removed from further
participation immediately (e.g., prior to the horse placing in the
class or the completion of the exhibition). Finally, all horses that
placed first in each class or event would need to be inspected after
the event to determine if such horses are sore or otherwise in
violation of the Act or regulations.
We acknowledge concerns that management of some events may forego
appointing an APHIS representative or HPI to inspect horses, but in
doing so they are legally liable for any sored horses participating in
the horse show, exhibition, sale, or auction. Shows without inspectors
are more likely to be attended and inspected by APHIS representatives,
particularly if APHIS determines the event poses a higher risk of sored
horses participating. We noted above that shows featuring Tennessee
Walking Horses and racking horses performing in pads and action devices
have historically posed a much higher risk of soring, and accordingly
we would focus our resources on them. Events featuring horses of other
breeds, particularly those shown or performing without pads and action
devices, pose a very low risk of soring. We invite comments on which
horse events covered under the Act APHIS should focus on with respect
to compliance risks, particularly events that choose to forego an
inspector.
If event management requests an APHIS representative be appointed
to conduct inspections on a certain date and no such representatives
are available, event management could instead choose and appoint an HPI
to inspect horses. If management determines that no HPIs are available
on the desired date, management could request that APHIS consider
granting a variance to proceed with the show or sale without an
inspector, as proposed in Sec. 11.16(a)(6).
When management requests an APHIS representative to inspect an
event, the Agency would choose the representative. If management opts
to appoint an HPI, management would choose the HPI from a list
maintained on the APHIS Horse Protection website.
Proposed Sec. 11.13(b) includes requirements moved from current
Sec. 11.20(b), and lists provisions for horse shows, exhibitions,
sales, and auctions at which management utilizes an APHIS
representative or HPI to conduct inspections. Proposed paragraph (b)(1)
would state that the management of any horse show, exhibition, sale, or
auction that utilizes an APHIS representative or HPI must not take any
action which may interfere with or influence the APHIS representative
or HPI in carrying out their duties.
In paragraph (b)(2), we would require that the management of any
horse show, exhibition, sale, or auction that utilizes an HPI to
inspect horses shall appoint at least 2 HPIs when more than 100 horses
are entered. We note that in current Sec. 11.20(c), 2 DQPs are
required for inspections when more than 150 horses are entered in an
event. We determined that limiting the number of horses to 100 or fewer
for one HPI in this proposal would allow that individual to inspect
horses more thoroughly and manageably. Additionally, we considered the
fact that relatively few horse events covered under the Act involve the
participation of 100 or more horses and the vast majority would
therefore only require one inspector.
In paragraph (b)(3) of proposed Sec. 11.13, we would require the
management of any horse show, exhibition, sale, or auction that
utilizes an APHIS representative or HPI to inspect horses to have at
least one farrier physically present if more than 100 horses are
entered in the event. If 100 or fewer horses are entered in the horse
show, exhibition, sale, or auction the management would have to, at
minimum, have a farrier on call within the local area to be present, if
requested by an APHIS representative or HPI appointed by management.
Because we would continue to allow the use of pads and wedges for
therapeutic treatment of Tennessee Walking Horses and racking horses,
it is necessary for management to make a farrier available to assist
with inspections of horses at horse shows, exhibitions, sales, and
auctions in case a pad or wedge needs to be removed as part of an
inspection.
Under proposed paragraph (b)(4) of Sec. 11.13, management is
required to prevent tampering with any part of a horse's limbs or
hooves in such a way that could cause a horse to be sore after an APHIS
representative or HPI appointed by management has completed inspection
and before participating in a show, exhibition, sale, or auction.
The current regulations in Sec. 11.20(b)(1) provide a means for
event management to notify the Department regarding a DQP when they
consider the performance of the DQP to be inadequate or otherwise
unsatisfactory. Under proposed Sec. 11.13(b)(5), we would provide a
similar opportunity for management to address concerns regarding the
performance of an HPI utilized to conduct inspections. If management is
dissatisfied with the performance of a particular HPI, management would
need to notify, in writing, the Administrator as to why they believe
the performance of the HPI was inadequate or otherwise unsatisfactory.
It is in the best interests of management to notify APHIS as soon as
possible so that the Agency can gather relevant information and
interview witnesses before recollections are lost to time. If the
Agency determines the HPI's performance was inadequate or otherwise
unsatisfactory, this could be addressed prior in a timely manner.
Current Sec. 11.20(b)(1) also requires that ``[m]anagement which
designates and appoints a DQP shall immediately disqualify or disallow
from being shown, exhibited, sold, or auctioned any horse identified by
the DQP to be sore or otherwise in violation of the Act or regulations
or any horse otherwise known by management to be sore or in violation
of the Act or regulations.'' Under proposed Sec. 11.13(b)(6), we would
similarly require that management that utilizes an APHIS representative
or HPI would have to immediately disqualify or prohibit from showing,
exhibition, sale, offering for sale, or auction of any horse identified
by the APHIS representative or HPI appointed by management to be sore
or otherwise in violation of the Act or regulations and any horse
otherwise known by management to be sore or otherwise in violation of
the Act or regulations.

[[Page 56947]]

Under proposed Sec. 11.13(c)(1), management at horse shows,
exhibitions, sales, and auctions would be required to ensure that no
devices or substances prohibited under proposed Sec. 11.6 are present
in the horse warm-up area. This provision would ensure that such
devices are not being used for any purposes contributing to soring in
the warm-up area. Paragraph (c)(2) would require that management review
the orders of the Secretary disqualifying persons from showing or
exhibiting any horse, or judging or managing any horse show,
exhibition, sale, or auction, and disallow the participation of any
such person in any such event for the duration of the period of
termination.
Management would also be required to verify the identity of all
horses entered in the show, exhibition, sale, or auction under proposed
Sec. 11.13(c)(3), with acceptable methods of identification being: (1)
A description sufficient to identify the horse, including, but not
limited to, name, age, breed, color, gender, distinctive markings, and
unique and permanent forms of identification when present (e.g.,
brands, tattoos, cowlicks, or blemishes); or (2) electronic
identification that complies with ISO standards; \53\ or (3) an equine
passport issued by a State government and accepted in the government of
the State in which the horse show, exhibition, or sale or auction will
occur. Verifying the identity of horses is critical to ensuring that a
horse disqualified for an HPA violation does not participate in the
event in question.
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\53\ An international standard for regulating the radio
frequency identification (RFID) of animals.
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Records Required

Under proposed Sec. 11.14(a), moved from current Sec. 11.22(a),
management of any horse show, exhibition, sale, or auction that
contains Tennessee Walking Horses or racking horses would be required
to maintain all records for a minimum of 90 days following the closing
date of the show, exhibition, sale, or auction.\54\ Records also would
be required to contain the dates and place of the event, as well as the
name and address of the sponsoring organization, event management, and
each show judge, as applicable. In addition, management would be
required to keep a copy of each class or sale sheet containing the
names of horses, the registration number of the horse (if applicable),
names and addresses of horse owner, the exhibition number and class
number or sale number assigned to each horse, the show class or sale
lot number, and the name and address of the person paying the entry fee
and entering the horse in the show, exhibition, sale, or auction.
Copies of the official program would also need to be kept, if such a
program has been prepared, as well as a copy of the official scoring
cards for each show containing Tennessee Walking Horses and racking
horses, to include the place each horse finished in the class.
Management would also be required to maintain records showing the name
and any applicable registration name and number of each horse, as well
as the names and addresses of the owner, the trainer, the custodian,
the exhibitor and the location of the home barn or other facility where
the horse is stabled.
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\54\ These information collection activities will be scheduled
for merger into 0579-0056 upon publication of a final rule.
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Records required to be kept by event management in proposed Sec.
11.14(a) would also include those of horses disqualified from
participating, which are currently required to be kept by management
and submitted to APHIS under Sec. 11.24(a). These records are required
to contain the name, exhibition number and class number, or assigned
sale number, and the registration name and number (if applicable) for
each horse disqualified or prohibited by management from being shown,
exhibited, sold or auctioned, and the reasons for such action, as well
as the name and address of the person designated by the management to
maintain the records required. Finally, if management has appointed an
HPI to conduct inspections at the event, the name and address of each
HPI appointed to conduct the inspections would be required.
In the current regulations, there are no recordkeeping requirements
for horses under the care of a licensed veterinarian and requiring
therapeutic treatment using pads or other restricted or prohibited
advices. Proposed Sec. 11.14(b) would require that the management of
any horse show, exhibition, or sale or auction that allows any horse to
be shown, exhibited or sold with devices, pads, substances,
applications, or other items restricted under proposed Sec. 11.6 for
therapeutic treatment must maintain the following information for each
horse receiving the therapeutic treatment for a period of at least 90
days following the closing date of the horse show, exhibition, sale, or
auction: (1) The name, exhibition number and class number, or assigned
sale number, and the registration name and number (if applicable) for
each horse receiving therapeutic treatment; (2) the name, address, and
phone number of the licensed veterinarian providing the therapeutic
treatment; (3) the State and license number of the licensed
veterinarian providing the therapeutic treatment; and (4) the name and
address and phone number of the licensed veterinarian's business.
Finally, the records would also need to contain a description of the
disease, injury, or disorder for which the treatment is given, to
include at minimum the starting date of treatment, prescription or
design of the treatment plan, and expected length of treatment,
including an estimate of when it is anticipated to be discontinued. We
are applying this recordkeeping requirement to all horses participating
in events covered under the Act to ensure that any such horses under
therapeutic care involving restricted or prohibited items in
proposedSec. 11.6 are receiving legitimate veterinary treatment and
are not being sored.

Inspection of Records

Under proposed Sec. 11.15, moved from current Sec. 11.23(a), the
management of any horse show, exhibition, sale, or auction would be
required to permit any APHIS representative or HPI appointed by
management, upon request, to examine and make copies of all records
pertaining to any horse that are required in the regulations or
otherwise maintained during business hours or agreed upon times. In
addition, a room, table, or other facilities necessary for proper
examination and copying of such records would need to be made available
to the APHIS representative or HPI appointed by management.

Reporting by Management

Proposed Sec. 11.16(a) requires that the management of any horse
show, horse exhibition, horse sale, or horse auction notify the
Administrator of the event by mail, fax, or email not less than 30 days
before it occurs and submit the following information: (1) The name and
address (including street address and ZIP Code) of the horse show,
exhibition, sale, or auction; (2) the name, address, phone number (and
email address, if available) of the event manager; (3) the date(s) of
the horse show, horse exhibition, horse sale, or horse auction; (4) a
copy of the official horse show, exhibition, sale, or auction program,
if any such program has been prepared; and (5) anticipated or known
number of entries.
Also, paragraph (a)(6) would require event management to provide
information on whether they are requesting an APHIS representative to
perform inspections at the horse show, horse exhibition, horse sale, or
horse auction; or, if not, whether they have chosen and appointed an
HPI to inspect

[[Page 56948]]

horses or have no inspector. If neither an APHIS representative nor an
HPI is available on the date of the event, event management may request
a variance. Variances would have to be submitted in writing by mail,
fax, or electronic means such as email to the Deputy Administrator of
Animal Care at least 15 days before the event and state the reason for
requesting the variance. Finally, paragraph (a)(7) would require
management to provide information regarding whether they will allow any
horse to be shown, exhibited or sold with prohibitions under section
Sec. 11.6 for therapeutic treatment.
The 30-day notice requirement is not currently in the regulations,
and has been proposed to give APHIS advance notice of the event and
sufficient time to arrange for an APHIS representative to be present to
inspect horses, if requested by event management. APHIS would also
reserve the right to attend and conduct inspections at such events
unannounced.
Proposed Sec. 11.16(b) requires that at least 15 days before any
horse show, exhibition, sale, or auction is scheduled to begin, the
management of the event must notify APHIS of any changes to the
information required to be submitted to APHIS under proposed Sec.
11.16(a) by mail, fax, or email. We included this provision so that
APHIS would have knowledge of any changes to the event, such as a
change in the number of horses participating or the addition of show
classes, that could potentially affect inspections and compliance. We
assume that no changes have occurred to the submitted information
unless we receive notification to the contrary.
Under paragraph (c) of proposed Sec. 11.16, within 5 days
following the conclusion of any horse show, exhibition, sale, or
auction that contains Tennessee Walking Horses or racking horses, the
management of such an event is required to submit to APHIS the records
required by Sec. 11.14 by mail, fax, or email. Event information
already submitted in accordance with Sec. 11.16(a) (information to be
submitted at least 30 days before the event) would not need to be
submitted again.
Under paragraph (d) of proposed Sec. 11.16, management of any
horse show, exhibition, sale, or auction which does not include
Tennessee Walking Horses and racking horses would be required to submit
the following information to APHIS within 5 days following the
conclusion of the event: Any case where a horse was prohibited by
management from being shown, exhibited, sold or auctioned because it
was found to be sore or otherwise in violation of the Act or
regulations. Information would include at a minimum the name,
exhibition number and class number, or assigned sale number, and the
registration name and number (if applicable) for each horse
disqualified or prohibited by management from being shown, exhibited,
sold or auctioned, and the reason(s) for such action. We invite comment
on the timing and nature of these recordkeeping and records retention
requirements.

Transportation Requirements

Under proposed Sec. 11.17, moved from current Sec. 11.40, we
would require that each person who ships, transports, or otherwise
moves, or delivers or receives for movement, any horse with reason to
believe such horse may be shown, exhibited, sold or auctioned at any
horse show, exhibition, sale, or auction, must allow and assist in the
inspection of such horse at any such horse show, exhibition, sale, or
auction to determine compliance with the Act and regulations. The
person would also need to furnish to any APHIS representative or HPI
appointed by management upon their request the following information:
(1) Name and address of the horse owner and of the shipper, if
different from the owner or trainer; (2) name and address of the horse
trainer; (3) name and address of the carrier transporting the horse and
of the driver of the means of conveyance used; (4) origin of the
shipment and date thereof; and (5) destination of the shipment.

Utilization of Inspectors

We would include the provision in proposed Sec. 11.18(a) that the
management of any horse show, horse exhibition, horse sale, or horse
auction may utilize an APHIS representative or an HPI to detect and
diagnose a horse which is sore or to otherwise inspect horses for
compliance with the Act or regulations.
In proposed Sec. 11.18, paragraph (b), we would include the
requirement that if management elects to utilize an HPI to detect and
diagnose horses which are sore or to otherwise inspect horses for
compliance with the Act or regulations, the HPI must currently be
authorized by APHIS pursuant to Sec. 11.19 of the regulations to
perform this function.
In proposed paragraph (c), we would include the provision that the
management of any horse show, exhibition, sale, or auction must not
utilize any person to detect and diagnose horses which are sore or to
otherwise inspect horses for the purpose of determining compliance with
the Act and regulations, if that person has not been authorized by
APHIS or if that person has been disqualified by the Secretary, after
notice and opportunity for a hearing, in accordance with section 4 (15
U.S.C. 1823) of the Act, to make such detection, diagnosis, or
inspection.
We would include a provision in proposed paragraph (d) providing
that, after the effective date of the final rule, assuming this
rulemaking is finalized, only APHIS representatives and HPIs as defined
in Sec. 11.1 must be utilized by management to detect and diagnose
horses which are sore or otherwise inspect horses for compliance with
the Act or regulations. Any DQPs seeking to continue inspecting or
other persons wishing to become inspectors after the effective date of
this rule must apply to APHIS and meet eligibility qualifications for
authorization included in proposed Sec. 11.19.

Authorization and Training of Horse Protection Inspectors

Under the current regulations in Sec. 11.7, HIOs operating APHIS-
certified DQP programs are responsible for selecting, training,
evaluating, licensing, and disciplining DQPs. When an HIO requests
certification of its DQP program, APHIS requires the HIO to submit
criteria it intends to use to select DQP applicants, as well as
training plans, standards of conduct expected of DQPs, and other
materials listed in Sec. 11.7(b).
We propose to have APHIS assume the training and authorization of
inspectors, which involves removing and reserving Sec. 11.7 and
proposing new requirements for inspectors in a new Sec. 11.19. Based
on the conclusions of the USDA-OIG audit and the NAS study discussed
above, as well as our own observations made in the course of
administering the Horse Protection program, we determined that the
current regulations delegating DQP training and licensing
responsibilities to HIOs were not addressing the conflicts of interest
and inadequate training resulting in a failure to diagnose sored
horses, and that APHIS having a direct regulatory role in these
functions would best achieve the aim of eliminati

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