Rule2024-09469
Horse Protection Amendments
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 8, 2024
Effective
February 1, 2025
Issuing agencies
Agriculture DepartmentAnimal and Plant Health Inspection Service
Abstract
We are amending the horse protection regulations to provide that the Animal and Plant Health Inspection Service will screen, train, and authorize qualified persons for appointment by the management of any horse show, horse exhibition, or horse sale or auction to detect and diagnose soring at such events for the purposes of enforcing the Horse Protection Act. These and other regulatory amendments will strengthen the Agency's efforts to protect horses from the cruel and inhumane practice of soring as the Act requires and by so doing eliminate unfair competition.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 90 (Wednesday, May 8, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 90 (Wednesday, May 8, 2024)]
[Rules and Regulations]
[Pages 39194-39251]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-09469]
[[Page 39193]]
Vol. 89
Wednesday,
No. 90
May 8, 2024
Part IV
Department of Agriculture
-----------------------------------------------------------------------
Animal and Plant Health Inspection Service
-----------------------------------------------------------------------
9 CFR Part 11
Horse Protection Amendments: Final Rule
Federal Register / Vol. 89 , No. 90 / Wednesday, May 8, 2024 / Rules
and Regulations
[[Page 39194]]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 11
[Docket No. APHIS-2022-0004]
RIN 0579-AE70
Horse Protection Amendments
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are amending the horse protection regulations to provide
that the Animal and Plant Health Inspection Service will screen, train,
and authorize qualified persons for appointment by the management of
any horse show, horse exhibition, or horse sale or auction to detect
and diagnose soring at such events for the purposes of enforcing the
Horse Protection Act. These and other regulatory amendments will
strengthen the Agency's efforts to protect horses from the cruel and
inhumane practice of soring as the Act requires and by so doing
eliminate unfair competition.
DATES: This rule is effective on February 1, 2025, except for Sec.
11.19, which is effective June 7, 2024.
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#345c5b46475144465b405157405d5b5a74414750551a535b42"><span class="__cf_email__" data-cfemail="f49c9b86879184869b809197809d9b9ab481879095da939b82">[email protected]</span></a>;
(970) 494-7484.
SUPPLEMENTARY INFORMATION:
Background
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 Horse Protection regulations or just 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 \1\ 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, except that such term does not
include such an application, infliction, injection, use, or practice in
connection with the therapeutic treatment of a horse by or under the
supervision of a person licensed to practice veterinary medicine in the
State in which such treatment was given.''
---------------------------------------------------------------------------
\1\ We interpret ``device'' to include chains, which are
commonly placed on the limbs of Performance division Tennessee
Walking Horses and racking horses when competing in shows. The
association of chains with devices has been included in the
regulations since 1979: ``General Prohibitions'' (Sec. 11.2(a))
states that, notwithstanding the provisions of paragraph (b), ``. .
. no chain, boot, roller, collar, action device, nor any other
device . . . shall be used. . . .'' [our emphasis].
---------------------------------------------------------------------------
Soring has been used almost exclusively in the training of certain
Tennessee Walking Horses and racking horses \2\ to induce pain,
resulting in an exaggerated gait that is valued in the show ring.
However, the HPA's prohibition against sored horses participating in
shows, exhibitions, sales, and auctions extends to events involving all
horse breeds.\3\ 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.
---------------------------------------------------------------------------
\2\ 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.
\3\ Records of non-compliance with the HPA's soring prohibition
is rare in breeds other than the Tennessee Walking Horse and racking
horse. APHIS nonetheless conducts occasional inspections and
investigates other breed activity, and keeps records of any such
noncompliance.
---------------------------------------------------------------------------
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 \4\ 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 (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.
---------------------------------------------------------------------------
\4\ Public Law 94-360, section 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>.
---------------------------------------------------------------------------
Responding to Congress's 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 39195]]
programs to train and license DQPs. Prior to this final rule, these
training and licensing programs were administered by Horse Industry
Organizations, or HIOs.
HIOs have historically filled several roles, both unregulated and
regulated, for horse shows, exhibitions, sales, and auctions. For
example, event management sometimes retains 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.\5\ Regulated HIO activities, in addition to
training and licensing DQPs, included reporting disciplinary actions
against exhibitors, event management, and DQPs to APHIS. Under the
previous regulatory regime, an HIO seeking certification to train and
license DQPs was required to submit to APHIS a formal request in
writing for certification of its DQP program and a detailed outline of
the program.
---------------------------------------------------------------------------
\5\ HIOs may continue conducting such unregulated activities
under the new regulatory scheme.
---------------------------------------------------------------------------
Under the Horse Protection program prior to promulgation of this
final rule, DQPs were the primary party responsible for inspecting and
diagnosing soreness in horses participating in horse shows,
exhibitions, auctions, or sales. A DQP was a qualified person who,
under the provisions of 15 U.S.C 1823(c) cited above, could 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 were reimbursed for services directly by event
management or by an HIO contracting with the DQPs to provide
inspections for events. DQPs were required to have equine experience
and meet professional qualifications as set forth in the regulations.
DQP candidates also had to successfully complete a formal training
program developed and delivered by the HIO before they could be
licensed, except that veterinarians already accredited by USDA were
able to be licensed as DQPs without having to participate in formal
training. Such veterinarians also had to be either a member of the
American Association of Equine Practitioners, or a large animal
practitioner with substantial equine experience, or be, based on the
HIO's judgment, otherwise knowledgeable of equine lameness as related
to soring and soring practices. The regulations provided that
veterinarians having such knowledge might include those with a small
animal practice who own, train, judge, or show horses, or who are
Doctors of Veterinary Medicine who teach equine-related subjects in an
accredited college or school of veterinary medicine.
Alternatively, DQPs were able to be farriers, horse trainers, and
other knowledgeable individuals whose past experience and training
would, in the HIO's judgment, qualify them for positions as HIO
stewards or judges (or their equivalent), provided that they were
trained and licensed by an HIO or association whose DQP program was
certified by APHIS.
APHIS Veterinary Medical Officers (VMOs) would sometimes 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 reviewed reports by event management, HIOs, and DQPs,
and conducted audits of records maintained by certified DQP programs.
APHIS has used 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, disqualification from competing, 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.
As we explained in the proposal on which this final rule is based,
this rule replaces a final rule that was filed for public inspection on
the Federal Register website, in advance of official publication, on
January 19, 2017. However, the incoming Administration at that time
ordered this and other rules pending publication to be withdrawn, which
USDA accordingly did. As the result of a lawsuit claiming that the rule
had actually been promulgated and that USDA had withdrawn the 2017
final rule without proper notice and comment as required under the
Administrative Procedure Act, a notice of proposed rulemaking to
withdraw the 2017 final rule legally was published in the Federal
Register on July 21, 2023 (88 FR 47068-47071, Docket No. APHIS-2011-
0009), and finalized on October 31, 2023 (88 FR 74336-74341, Docket No.
APHIS-2011-0009). This current rule incorporates provisions included in
the 2017 HPA final rule to eliminate soring, including replacing DQPs
with APHIS-authorized inspectors and banning pads and action devices on
Tennessee Walking Horses and racking horses, the only two breeds in
which APHIS currently finds elevated levels of soring.
Evaluations of the Horse Protection Program
Since 2009, multiple evaluations have been conducted outside the
Agency to determine program efficacy. In September 2010, USDA's Office
of the Inspector General (OIG) formally evaluated APHIS' oversight of
the Horse Protection program \6\ in accordance with generally accepted
government auditing standards.\7\ 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.
---------------------------------------------------------------------------
\6\ 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>).
\7\ 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>.
---------------------------------------------------------------------------
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. 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.
In addition, a 2021 study \8\ by the National Academy of Sciences
(NAS) analyzed the causes of soring and its diagnosis in light of the
current regulations. This is the most recent available study on this
subject. The NAS study 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 NAS committee authoring the study
examined the inspection process, which included a review of 61
[[Page 39196]]
inspection videos provided by APHIS and by HIOs that revealed numerous
instances of inadequate performance by DQPs.\9\ 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. The committee added that if APHIS
continues to use third-party inspectors, they should be limited to
veterinarians or other equine industry professionals who are screened
for potential industry 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 from HIOs.
---------------------------------------------------------------------------
\8\ National Academies of Sciences, Engineering, and Medicine: A
Review of Methods for Detecting Soreness in Horses (2021), <a href="https://nap.nationalacademies.org/catalog/25949/a-review-of-methods-for-detecting-soreness-in-horses">https://nap.nationalacademies.org/catalog/25949/a-review-of-methods-for-detecting-soreness-in-horses</a>.
\9\ NAS study, page 30.
---------------------------------------------------------------------------
These evaluations, which were, again, external to APHIS, also
correspond to evaluations of program efficacy that APHIS conducts as
part of ongoing evaluation of its Horse Protection program. Inspection
data compiled by APHIS from fiscal years (FY) 2017 to 2022 demonstrated
that inconsistencies persisted 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. These inspections were
conducted on horses competing in the Performance (``padded'') division
as well as the flat-shod division. While APHIS attended only a fraction
of the events at which DQPs were appointed to inspect horses, APHIS
consistently reported much higher rates of noncompliance at these
events based on its VMO inspection findings when compared to DQP
findings. Moreover, virtually all noncompliances were found in padded
horses competing in the Performance division.
Proposed Rule
In light of the foregoing evaluations, on August 21, 2023, we
published in the Federal Register (88 FR 56924-56962, Docket No. APHIS-
2022-0004) a proposal \10\ to amend the Horse Protection regulations.
Substantive changes we proposed to make in part 11 included:
---------------------------------------------------------------------------
\10\ To view the proposal, supporting documents, and the
comments we received, go to <a href="http://www.regulations.gov">www.regulations.gov</a> and enter APHIS-
2022-0004 in the Search field.
---------------------------------------------------------------------------
<bullet> Removing the requirement that DQPs be trained and licensed
by HIOs and removing the term DQPs from the regulations. Instead, we
proposed that APHIS would screen and train qualified persons to be
``Horse Protection Inspectors,'' or HPIs. APHIS would authorize these
applicants, preferably licensed 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. We stated that other 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 mask evidence of soring. (We stated that
existing 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, artificial extension of
toe length, pads, wedges, and lubricants \11\ on the limbs or feet of
Tennessee Walking Horses and racking horses (with exceptions for
approved therapeutic uses of artificial extension of toe length, pads,
wedges, and substances). An action device is any boot, collar, chain,
roller, beads, bangles, 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. We proposed to afford the industry 270 days from the effective
date of the final rule before the prohibition on pads and wedges, and
artificial toe extensions, would be effective.
---------------------------------------------------------------------------
\11\ All other substances are already prohibited on the 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, horse exhibition, or horse sale or auction.
---------------------------------------------------------------------------
<bullet> Replacing the ``scar rule'' \12\ with language that more
accurately describes visible dermatologic changes indicative of soring,
and removing the requirement that such changes be bilateral.
---------------------------------------------------------------------------
\12\ In place of this term, we prefer to use ``Dermatologic
conditions indicative of soring (DCIS),'' although we still use
``scar rule'' in this document when referring to the current
regulations or when a commenter refers to it as such.
---------------------------------------------------------------------------
<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. We stated that
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 at least 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 were 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.
Discussion of Comments
We solicited comments concerning our proposal for 60 days ending
October 20, 2023. We received 8,787 comments on the proposed rule
through submissions received via regulations.gov, email, and U.S. mail.
Comments received by APHIS via email and U.S. mail were copied into
regulations.gov. We conducted a thorough and unbiased review of all
comments, the majority of which consisted of variations on a single
form letter supporting the rule submitted by over 7,000 persons, as
well as a form letter submitted by an organization supporting the rule
with 107, 257 signatories listed. Variations of other form letters
generally opposing or supporting the proposed rule were submitted by
smaller groups of commenters. Other comments were from: State and
Federal elected officials, including U.S. Senators and Representatives;
State agricultural agencies and farm bureaus; gaited horse breeder
organizations, trotting horse federations and organizations, and other
[[Page 39197]]
domestic and foreign horse industry organizations; equine veterinarians
and veterinary associations; horse rescue and animal welfare advocacy
organizations; horse owners, trainers, and exhibitors; and saddle
clubs, farriers, cattle grower associations, small business owners, and
other interested persons. We address the issues the commenters raised
in the order that they appear in the regulatory text of the proposed
rule.
Based on the comments received, we are finalizing the proposed
rule, including these significant modifications:
<bullet> We have revised proposed Sec. 11.5, so that it provides
for appeal of a disqualification rather than appeal of an inspection
report.
<bullet> We have elected not to finalize the proposed 270-day
implementation period for phasing out pads, wedges, and artificial toe
extensions on Tennessee Walking Horses and racking horses as provided
for in Sec. 11.6(c).
<bullet> We have elected not to provide management of a covered
horse show, exhibition, sale, or auction with the option of requesting
a variance at least 15 days before an event if no APHIS representative
or HPI is available. This requirement was in proposed Sec.
11.16(a)(6).
<bullet> We have elected not to require that veterinarians be
licensed as a qualification for authorization as an HPI. This
requirement was in proposed Sec. 11.19(a)(1).
<bullet> We have revised the language of our proposed description
of dermatological conditions indicative of soring by making the list of
conditions illustrative, rather than requiring that the presence of any
one condition must result in a diagnosis of soring. We made this
revision and moved this provision to revised Sec. 11.7.
We explain why we made each of these changes to the proposed
regulations under the relevant section below. Our responses to economic
issues and questions received from commenters are included in the
economic analysis summarized in this final rule and available as a
supporting document on regulations.gov (see footnote 10).
Comments on Supporting Data in the Proposal
We included in the proposal two tables showing inspection data for
HPA-covered events from fiscal years (FY) 2017 through 2022. Table 1
presents Performance division horse inspection data for HPA-covered
events from FY 2017 to FY 2022. Table 2 presents flat-shod horse
inspection data for HPA-covered events from the same period. Each table
shows, by year, the number of horses inspected by DQPs at events where
APHIS officials were not present, the number of noncompliance
violations the DQPs found, and the rate of noncompliance (number of
horses inspected divided by the number of violations found). Each table
also shows the number of horses inspected by DQPs at events where APHIS
officials were present, the number of noncompliance violations the DQPs
found in the presence of APHIS officials, and the rate of
noncompliance. Finally, each table shows the number of horses inspected
by APHIS officials at these events, the number of noncompliance
violations they found, and the rates of noncompliance.
The noncompliance rates detected by DQPs when APHIS is present and
when APHIS is not present are calculated using the same method, by
using the number of noncompliances detected by DQPs and the number of
horse entries inspected by DQPs. We cited this data in the proposal to
highlight the differences between noncompliances detected by DQPs when
APHIS officials are present to observe DQP inspections and when APHIS
officials are not present. These differences, in our view, are
significant in that they suggest that in the absence of APHIS officials
checking their work, DQPs are passing horses during inspections that
they likely know would not pass if checked by an APHIS official. We
therefore can only conclude that some DQPs are unwilling to correctly
palpate and, therefore, make a proper diagnosis of the horses they
inspect. As a result, the current DQP system is not contributing to the
goal of eliminating soring in Tennessee Walking Horses and racking
horses, particularly those that show as Performance division horses in
pads and action devices. To underscore this point, the table data for
flat-shod horses shows dramatically lower rates of noncompliance in
APHIS' inspections of horses, although a smaller discrepancy in rates
of noncompliance remains when DQPs are inspecting horses when APHIS
VMOs are present and when they are not.
Several commenters stated that the noncompliance data we included
in tables 1 and 2 is incomplete, misleading, and based on a subjective
inspection protocol that renders any conclusions APHIS draws from the
data as being unreliable. One such commenter noted that the data
reproduced in the tables in the proposal does not match up with
activity reports publicly available on APHIS's Horse Protection program
website. The commenter noted that the proposed rule indicates that USDA
inspectors detected a total of 323 instances of noncompliance in FY
2022, but that the activity report for that year shows only 117
instances. The commenter stated that USDA needs to explain the
discrepancy, as it calls into question the higher rates of
noncompliance at these events based on the APHIS VMO inspection
findings.
The commenter is comparing data sets from two report types that are
not commensurable. The fiscal year activity report that the commenter
found online \13\ only includes noncompliance data reported by APHIS
VMOs to management of the regulated event for possible
disqualification. The report does not include instances of
noncompliance that were observed by an APHIS VMO and referred to a DQP
for appropriate follow-up inspection or remedial action. Those
instances, which often result in actions taken by the DQPs themselves,
are not part of the activity report, but were part of the data sets in
tables 1 and 2 of the proposed rule. The fiscal year activity report
also does not include instances of noncompliance that were observed by
a DQP during inspection but reported by the DQP directly to management.
In sum, the data in tables 1 and 2 of the proposed rule provide a more
accurate depiction of the rate of noncompliance than the activity
reports, which show a more limited range of noncompliance data.
---------------------------------------------------------------------------
\13\ APHIS Horse Protection Program FY 2022 Activity Report:
<a href="https://www.aphis.usda.gov/animal_welfare/downloads/hp/fy2022-horse-program-activity-report.pdf">https://www.aphis.usda.gov/animal_welfare/downloads/hp/fy2022-horse-program-activity-report.pdf</a>.
---------------------------------------------------------------------------
We included the tables in the proposed rule to show that DQPs were
far more likely to identify noncompliance of any sort when APHIS VMOs
were also present and observing at the event.
The commenter also stated that the data in the proposed rule
showing higher rates of soring detected by VMOs is invalid because it
was not based on a random sample of horses inspected. As a result, the
USDA's data purportedly showing higher rates of noncompliance detected
by USDA inspectors cannot properly be treated as showing the violation
rate at Tennessee Walking Horse events because it is based on
inspections of a subset of horses that were singled out in advance as
being suspected of soring.
As the commenter indicated, we indeed acknowledged in the proposed
rule that many horses selected by VMOs for inspection ``are more likely
to be diagnosed [as sore], as that sample
[[Page 39198]]
presented indications of soring prior to inspection.'' We have never
claimed that inspections of horses for soring are randomized, although
we also inspect horses showing no indications of soring. The data is
not restricted to a random sample because APHIS does not operate in an
environment in which a fully random sampling is warranted, or, indeed,
possible.
After 50 years of enforcing the HPA, APHIS has amassed an aggregate
body of data indicating the Tennessee Walking Horse and racking horse
industry is disproportionately likely to sore their horses, and DQPs in
the industry are disproportionately unlikely to detect the soring. This
is true regardless of the year in question, the number of inspections
conducted, or other controls applied. For example, in 2023, APHIS VMOs
conducted significantly more inspections than in 2022; yet the rate of
soring detected remained almost identical. Our inspection efforts under
the HPA thus properly focus on those industries that present a much
higher risk of soring their horses based on prior experience over the
past 50 years.
It is also worth noting, as we did in the proposed rule, that both
USDA-OIG and the NAS study committee reached similar conclusions
regarding the Tennessee Walking Horse and racking horse industry, and
that the NAS study was jointly requested not only by APHIS, but also by
the Tennessee Department of Agriculture and the Tennessee Walking Horse
Breeders Foundation.
Further, the commenter stated that the data cited in tables 1 and 2
of the proposal is misleading because it reflects rates for all HPA
noncompliance violations, not just soring violations. The commenter
added that by failing to distinguish between violations that do and do
not involve soring, USDA overinflates the data that supposedly shows
soring violations, and that the actual rate of soring is likely even
lower than that reported.
The commenter is correct that the data cited in the proposal
includes HPA noncompliances that are not categorized as ``sore''
noncompliances. However, we disagree that the tables were misleading.
The proposed rule did not purport to indicate that tables 1 and 2
contained only instances of noncompliance indicative of soring. Again,
the articulated purpose of tables 1 and 2 in the proposed rule was to
show that there are still higher rates of soring, insofar as DQPs were
much more likely to identify all types of noncompliance, both actual
soring and otherwise, when APHIS VMOs were also present at the event.
And, in fact, the majority of these noncompliances across all years in
the data chart were indeed categorized as ``sore.'' Aside from a slight
decrease in FY2019, the percentage of noncompliances categorized as
``sore'' continued to increase year after year, as the following table
shows:
Table 1--Numbers of Sore and Other Noncompliances Detected by APHIS, FY2018-FY2023 *
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY18 FY19 FY20 FY21 FY22 FY23
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Sore Noncompliances APHIS Detected............ 78 180 61 122 257 525
Number of Other HPA Noncompliances APHIS Detected....... 27 69 19 37 66 96
Total Number of HPA Noncompliances APHIS Detected....... 105 249 80 159 323 621
Percentage Involving Sore Noncompliance................. 74% 72% 76% 77% 80% 85%
--------------------------------------------------------------------------------------------------------------------------------------------------------
* This table combines noncompliances of both Performance and flat-shod horses. Not included are noncompliances detected by APHIS at events where DQPs
were not present.
Table 2--Overall Noncompliance Rates Detected by APHIS, FY2018-FY2023 *
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY18 FY19 FY20 FY21 FY22 FY23
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Entries Inspected by APHIS.................... 1,556 1,198 326 541 1,287 2,740
Number of Sore Noncompliances APHIS Detected............ 78 180 61 122 257 525
Noncompliance Rate Detected by APHIS Involving Sore 5% 15% 19% 23% 20% 19%
Noncompliances (%).....................................
Number of Other HPA Noncompliances APHIS Detected....... 27 69 19 37 66 96
Noncompliance Rate Detected by APHIS Involving Other HPA 2% 6% 6% 7% 5% 4%
Noncompliances (%).....................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
* This table combines noncompliances of both performance and flat-shod horses. Not included are noncompliances detected by APHIS at events where DQPs
were not present.
The same commenter claimed that the data on noncompliances reported
by APHIS resulted from a subjective inspection process that has been
shown to be incapable of producing reproducible results. The commenter
stated that USDA implemented a requirement in late 2016 that a horse
found in violation of the HPA by a VMO must be re-inspected by a second
VMO, if present. USDA removed that requirement in 2021 because we
concluded that a single VMO's finding of soring was reliably accurate
without the need for additional confirmation. The commenter stated,
however, that when the second inspection rule was in use between 2017
and 2021, the number of violations dropped significantly whenever two
VMO inspectors had to agree on a finding of a violation. The commenter
concluded, therefore, that the number of violations APHIS reported in
the tables in FY 2017, FY 2021, and FY 2022 is likely lower than what
is reported.
The fact that APHIS VMOs occasionally reach different conclusions
about whether a horse is sore does not categorically invalidate the
ability or the reasoned judgment of a trained inspector with respect to
detecting and diagnosing soreness in horses. The protocol referred to
by the commenter required APHIS VMOs to make exactly the same findings
in order to document a violation, and, as the NAS study stated, ``[t]he
requirement that two VMOs must make exactly the same findings (i.e.,
sensitive on the lateral pastern but not bulbs of heels or medial
pastern) does not consider changes that may occur over time between
examinations, how the horse may respond to repeated palpation, or how
the presence of foreign substances either parenterally or topically may
influence findings over time.'' \14\ Further, the NAS study noted that
``[d]istractions and stressors can inhibit a horse's sensitivity to and
expression of pain, such that detection of soreness would be missed, or
a horse's reaction to distractions could be incorrectly attributed to
pain. Moreover, when more than one
[[Page 39199]]
inspector examines the horse, its behavior may differ between the two
inspections if the number and type of distractions and stressors at
that location and time also differ.'' \15\
---------------------------------------------------------------------------
\14\ NAS study, Conclusion 2-5, page 34.
\15\ Ibid., Conclusion 3-1, page 52.
---------------------------------------------------------------------------
While we agree with the commenter that inspection does often entail
a professional's judgment that observable symptoms are indicative of
soring, we disagree with the commenter's characterization of the
inspection process as subjective and incapable of producing
reproducible results. The NAS study describes the current process APHIS
uses for detecting soreness, which involves informed observation of the
horse's movement and posture and palpation of the limbs, as ``the gold
standard for detecting local pain and inflammation. These examination
methods are known to be valid and reliable when performed by
veterinarians who are trained and highly experienced in detecting
lameness and pain. They are employed to detect lameness, injury, and
pain in all breeds of horses that are used in competitions, shows,
recreational riding, work, breeding, and teaching.'' \16\
---------------------------------------------------------------------------
\16\ Ibid., Finding 2-2, page 33.
---------------------------------------------------------------------------
The same commenter also stated that the NAS study recognizes and
supports their position that USDA's current inspection protocol is
predominantly subjective and does not yield reproducible and consistent
results. As evidence, the commenter stated that USDA's own inspectors
cannot agree on whether an individual horse is sore. The commenter
cited inspection data from one horse event in 2016, which showed that
when two different USDA officials inspected the same horses, they could
not agree on the same conclusion up to 52 percent of the time. Based on
this discrepancy, the commenter stated that APHIS can draw no valid
conclusions that Agency inspectors generally find a higher rate of
violations and cannot use data obtained from that inspection protocol
as evidence that soring persists.
The commenter's characterization of the NAS study distorts its
content. The study did not suggest that the current inspection protocol
is incapable of detecting soring; to the contrary, as noted above, it
considered the current practice for detecting soreness to be the ``gold
standard'' for doing so. NAS also found, however, that APHIS'
inspection protocol was actually overly prescriptive. At the time of
the NAS study, a second VMO was required to inspect a horse if the
first VMO initially found it to be bilaterally sore and, to warrant a
finding of soring and disqualification, ``the second inspection must be
exactly the same as to the area of apparent pain and the type of
response given by the horse as well as findings of skin changes
indicative of previous injury.'' \17\ Thus, even if the second VMO also
found the horse to be sore, any difference between the first and second
inspections, however minor, could invalidate the finding. The NAS study
noted that ``[f]ailure by a VMO to adhere to such a prescriptive
protocol could ``allow for possible objections to the VMO's finding by
the horse custodian,'' adding that ``inspection by a second VMO may
cast doubt on the ability of VMOs to detect pain or other abnormalities
and may negatively affect the VMO's ability to make appropriate
judgments.'' \18\ The study recommended that properly qualified and
trained individuals be afforded greater latitude to make a professional
judgment of soring under a less prescriptive protocol, noting that
under the two-VMO protocol, a determination of soring can easily be
overturned when it should not; in other words, a false negative on
reinspection is more likely the outcome than is a false positive of
soring.
---------------------------------------------------------------------------
\17\ J. Baker, former VMO, USDA Animal Care Horse Protection
Program, personal communication, July 27, 2020; cited in NAS study,
page 32.
\18\ NAS study, Conclusion 2-4, page 34.
---------------------------------------------------------------------------
With respect to the inspection data cited by the commenter from one
show in 2016, the nature of the prescriptive protocol may explain why
inspections by different VMOs resulted in a different finding 52
percent of the time at that show. Even so, the single show data the
commenter cited is not a representative sampling, nor does it address
the ability of APHIS VMOs to detect soring.
In claiming the unreliability of the USDA inspection protocol and,
thus, of the data from those inspections, the commenter also referred
to a research project included in the NAS study report, conducted by
Dr. Paul Stromberg, that examined skin biopsies from Tennessee Walking
Horses disqualified for scar rule violations. Dr. Pamela E. Ginn, a
member of the NAS study committee and a board[hyphen]certified
veterinary pathologist and a specialist in veterinary dermatopathology,
also examined the biopsies and reviewed Dr. Stromberg's conclusions.
As this comment pertains mainly to questioning the accuracy of the
scar rule, we respond to the comment under the heading ``Dermatologic
Conditions Indicative of Soring'' below.
Another commenter, citing the same 2016 event inspection data as
the commenter above, stated that APHIS is relying on different
``violation'' rates when APHIS officials are present and when they are
not present, and that this is misleading.
We interpret the commenter to mean that it is misleading for APHIS
to show that DQPs are allowing sore horses to pass inspection when not
under the supervision of APHIS officials and citing the discrepancy in
rates. We disagree that this is misleading because we are simply citing
the results of DQP inspections under different conditions. We agree
with the commenter that DQPs find more noncompliances when APHIS
officials are present.
A commenter also questioned the reliability of the noncompliance
data by stating it is based on citations issued by APHIS VMOs lacking
equine experience. The commenter noted that the NAS study report
explained that ``examinations should be performed not only by a
veterinarian, but by a veterinarian who has equine experience.''
We disagree that noncompliance data presented in the proposed rule
should be considered unreliable because certain noncompliance was
detected by individuals lacking equine experience, although if lack of
experience is an issue, we note that it is DQPs, rather than APHIS
VMOs, who are doing most of the inspections and are so situated
currently. We note that APHIS VMOs, by virtue of being veterinarians
working within the Horse Protection program, are experienced with
equines and have received training in equine medicine. APHIS' training
of VMOs involves practice in learning and applying medically
established methods of diagnosing soring. We intend to extend a similar
rigorous level of HPI training to qualified persons with equine
experience under the changes we proposed to the Horse Protection
program.
The commenter also stated that APHIS' inspection methods fail to
account for injuries or sensitivity that may occur from ``legal''
activity that occurs during a show, comparing the minor sensitivity
that may result from normal activity during a show to what a human
athlete might feel after competing. The commenter stated that USDA
unfairly disqualifies horses post-show for such sensitivity when no
evidence of actual soring is found, and that USDA disregards any
plausible explanations for sensitivity not resulting from soring.
We disagree with the commenter, in that any show activity
considered ``normal'' would not result in a response to sensitivity
painful enough to be confused with soring, particularly if an
[[Page 39200]]
inspector has the training and experience to palpate and diagnose
horses accurately. To this end, we note again that palpation as
practiced by APHIS VMOs was determined by the NAS study to be the
``gold standard'' in detecting local pain and inflammation indicative
of soring, particularly when administered by a properly qualified and
trained veterinarian. We also note that medical professionals such as
VMOs are specifically trained in making the sort of differential
diagnoses cited by the commenter based on their professional judgment.
In addition, our records indicate that horses at flat-shod shows that
also compete athletically almost never exhibit soreness on post-show
inspection. We see no reason to discount our data on noncompliance as
being unreliable or misleading for the reason the commenter claims.
The commenter also stated that the data does not support USDA's
decision to treat Tennessee Walking Horses and racking horses
differently from other breeds.\19\ The commenter explained that USDA
based its decision that Tennessee Walking Horses require special rules
on the conclusion that violation rates are much higher at Tennessee
Walking Horse events than at competitions with other breeds, but that
the USDA provided no data showing violation rates for other breeds as
comparison. The commenter added that USDA apparently does not have data
for other breeds because it does not inspect those breeds the same way
it inspects Tennessee Walking Horses, and concluded from this that the
Agency should not place more onerous restrictions on the breed without
evidence to support that action. Another commenter echoed this point,
stating that other breeds have not been subject to decades of stringent
subjective inspections and that they are rarely inspected by the same
protocols as Tennessee Walking Horses and racking horses.
---------------------------------------------------------------------------
\19\ Related to this point, we note that in current Sec.
11.2(c) and (d) restrictions on substances and workouts specific to
Tennessee Walking Horses and racking horses have long been part of
the regulations.
---------------------------------------------------------------------------
In the proposed rule, we provided several reasons why APHIS does
not inspect other breeds for soring to the degree that we inspect
Tennessee Walking Horses and racking horses. As the commenter noted, we
indicated in the proposal that we base this approach on our informed
knowledge and monitoring for signs of soring in other breeds and, as a
means to further improve our ability to monitor the activities of other
breeds, we proposed in Sec. 11.16(a) that management of all horses
covered under the Act report their events 30 days in advance. Moreover,
the current regulations in Sec. 11.2(c) and (d) and Sec. 11.6 listing
prohibitions specific to Tennessee Walking Horses and racking horses
(provisions regarding substances and workouts) already treat these
breeds differently, as findings of soring are highly concentrated in
these breeds and infrequent in all other breeds. We also note that in
the occasional inspections we conduct on other breeds, we have found
only rare instances of noncompliance, and we maintain records of such
noncompliances.
In the small sample of data from events attended by APHIS where
other breeds were inspected, we found a very low noncompliance rate
comparable to that found in flat-shod Tennessee Walking Horses and
racking horses. These events included Missouri Fox Trotters, Rocky
Mountain, and Spotted Saddle Horses. The average noncompliance rate
detected by APHIS from FY 2017 to FY 2022 at these events was 0.8
percent, whereas the average noncompliance rate detected by APHIS for
flat-shod horses across the same years was 1.9 percent. In table 1 of
the proposal, during the same period, the average noncompliance rate
from APHIS inspections of Tennessee Walking Horses and racking horses
competing in Performance division events was 25 percent, and 34.1
percent in FY 2022 alone.
While isolated cases of soring have been reported in other horse
breeds, we question the commenter's implication that only regular
inspections of other horse breeds will confirm these breeds to be at
lower risk of soring, as opposed to other means of knowledge gathering
sufficient to establish an informed level of risk, which includes
occasional inspections. We noted, for instance, that the distinctive 2-
inch-high stacked pads worn by Tennessee Walking Horses and racking
horses are not used at shows by any other breed. In addition,
``[e]quine veterinarians on the NAS committee noted that skin changes
seen on the pasterns of Tennessee Walking Horses are not observed on
the pasterns of other breeds of horses (Arabians, American Saddlebreds,
Morgan horses), which also train with action devices such as chains and
rollers but do not wear them when shown at competitions.'' \20\
---------------------------------------------------------------------------
\20\ NAS study, page 81.
---------------------------------------------------------------------------
While all horse breeds are subject to provisions of the Act, we
proposed Tennessee Walking Horse- and racking horse-specific
prohibitions on certain items and practices because USDA has 50 years
of data showing a documented record of soring in these breeds that
simply does not exist for other breeds. On the other hand, if USDA were
considering establishing new regulations in a currently unregulated
community, presuming beforehand that one class of entity will be more
noncompliant than other classes without evidence would be
inappropriate.
Finally, soring imparts little to no advantage to competitors at
other breed 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. While we make a
distinction between Tennessee Walking Horses and racking horses and
other breeds by prohibiting the use of pads, artificial extension of
the toe, and action devices, we note that it is not necessarily the pad
or action device in itself that can cause soring per se, but rather
their specific application and use in training of a horse. Pads and
wedges in certain forms, for instance, can actually be used in training
in such a way as to cause soring. We address this issue further in the
comment responses below.
Definitions
In Sec. 1.1, we proposed adding definitions for custodian, day(s),
event manager, Horse Protection Inspector (HPI), local area,
participate, and therapeutic treatment.
A commenter stated that a definition should be added for
stewarding.
We believe that new Sec. 11.6(b)(21) adequately defines what we
consider to be stewarding. The paragraph prohibits the use of whips,
cigarette smoke, or similar actions or paraphernalia to distract a
horse or to otherwise impede the inspection process during an
examination, including but not limited to, holding the reins less than
18 inches from the bit shank. All such actions constitute stewarding.
The same commenter stated that a definition should be added for
``substances.''
In a 2016 proposed rule to revise the HPA regulations (81 FR 49112-
49137, Docket No. APHIS-2011-0009), we proposed adding such a
definition.\21\ However, in response to comments at that time, we
refrained from including it in the regulations. In brief, commenters
raised questions about the regulatory status of substances having
multiple uses and what constitutes a substance that should be
prohibited, as
[[Page 39201]]
well as requests to provide a definition that covers all substances of
concern.
---------------------------------------------------------------------------
\21\ To view this proposed rule, go to <a href="https://www.regulations.gov/document/APHIS-2011-0009-0001">https://www.regulations.gov/document/APHIS-2011-0009-0001</a>.
---------------------------------------------------------------------------
As no useful definition of ``substances'' can encompass all their
uses and abuses for the purposes of regulation, we believe the
regulation is adequate and have opted not to define the term. As
explained elsewhere in this document, the Act provides us with the
authority to restrict or prohibit practices, including the use of
substances, that can cause soring or mask evidence of it.
We proposed revising the definitions of action device,
Administrator, APHIS representative, inspection, management, person,
and sponsoring organization. We proposed removing the definitions for
APHIS Show Veterinarian, Designated Qualified Person or DQP, horse
industry organization or association, lubricant, Regional Director, and
show manager. Our responses to comments received on these changes are
addressed below.
We proposed no changes to, and received no substantive comments on,
the definitions for Act, Animal and Plant Health Inspection Service
(APHIS), Department, exhibitor, horse, horse exhibition, horse sale or
horse auction, horse show, Secretary, sore, and State.
We proposed revising the definition for action device by adding
beads and bangles to the list of such devices.
One commenter recommended that we also remove the word ``joint'' in
the definition when referring to the fetlock, adding that the fetlock
includes the joint and this wording implies it may be acceptable to
strike the area between the coronary band and the fetlock joint.
The term ``fetlock joint'' has been part of the HPA regulations
since 1979 and is only included in the definition of action device.
While we agree that the term ``fetlock'' includes the
metacarpophalangeal and metatarsophalangeal joints, both ``fetlock''
and ``fetlock joint'' are used in scientific literature interchangeably
to refer to the same region of a horse's distal limb. We are finalizing
as proposed.
We proposed revising the definition for Administrator by adding
U.S. mail and email addresses for sending mail to the Administrator of
APHIS. We received no comments on this revision and are finalizing as
proposed.
We proposed removing the definition for APHIS Show Veterinarian and
revising the definition of APHIS representative. 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 proposed revising this term
to read ``any employee or official of APHIS,'' which includes APHIS-
employed veterinarians attending shows in an official capacity. APHIS
representatives will include qualified full-time and intermittent VMOs
employed by APHIS to inspect horses for soring. HPIs, on the other
hand, will not be APHIS representatives under this definition because
they are not employees of APHIS and not compensated by the Agency, but
will be authorized to conduct inspections and will contract as third
parties with event management for their services. We received no
comments specifically addressing this change and are finalizing as
proposed.
We proposed adding a definition for the term custodian, which we
proposed to mean any person who has initial control of and who presents
a horse for inspection at any horse show, horse exhibition, horse sale,
or horse auction. We noted that a person acting as custodian may
typically perform additional roles, such as owner, exhibitor, seller,
or transporter. Also, the custodian must be able to provide required
information about the horse as required in part 11.
A few commenters expressed support for the new definition but
recommended that we limit the definition to ``any adult person, of the
age of 18 or older,'' noting that children should not be allowed to
present horses for inspection.
We agree with the commenter's recommendation and are modifying the
definition in this final rule by adding ``any adult person, age 18 or
older''. If a minor were found to be in violation with the regulations,
the person's status as a minor could complicate legal liability and
responsibility for purposes of addressing the infraction and enforcing
the Act. Custodian of a noncompliant horse is a role APHIS pursues for
enforcement.
Another commenter recommended that we insert the words ``and/or
subsequent'' after the word ``initial,'' as the proposed wording would
not address the question of subsequent control of the horse.
Occasionally, the person who has initial control of the horse will
have someone else take their place during the inspection process. That
person will have to meet the same requirements as the custodian who had
initial control of the horse. We agree with the commenter's
recommendation and will address it by removing ``initial'' from the
definition. By removing this word, the term accounts for any person
having control of the horse at any time, initially or subsequently.
We proposed and are adding the term day(s) to Sec. 1.1, and
defining 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. We received no comments specifically addressing this
addition and are finalizing as proposed.
The current definition of Designated Qualified Person is ``a person
meeting the requirements specified in Sec. 11.7 . . . 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 proposed removing the term Designated Qualified Person or DQP
and its definition, as well as all regulatory requirements in the
regulations pertaining to them. Instead, APHIS will screen, train, and
authorize Horse Protection Inspectors or HPIs 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. HPIs, preferably veterinarians, will be authorized by
APHIS pursuant to proposed Sec. 11.19 and appointed by management of
the event. Accordingly, we are including a definition for Horse
Protection Inspector in the regulations, included below. We received no
comments specifically addressing this proposed action and are
finalizing as proposed.
We proposed to add the term event manager to mean the person who
has been delegated primary authority by a sponsoring organization for
managing a horse show, horse exhibition, horse sale, or horse auction.
An individual event manager will need to be designated even if the
event is managed by a team of persons. This definition will clarify
management responsibility. We received no comments specifically
addressing this addition and are finalizing as proposed.
The term horse industry organization or association is currently
defined as
[[Page 39202]]
``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 proposed removing the term horse
industry organization or association and its definition, as all
regulatory requirements under the Act pertaining to these groups,
including requirements for certification of DQP programs,
recordkeeping, and other requirements assigned to them will no longer
be included in the revised regulations.
A few commenters opposed removal of the term and removal of the
role played by HIOs under the current program. One commenter stated
that the change will impose significant new recordkeeping and reporting
requirements, and new tasks such as crowd control, on local show
managers.
We are making no changes based on these comments. We disagree with
the commenter's point that the proposed regulatory changes eliminate
HIOs or prevent them from working with show management. As we noted in
the proposal, HIOs are free to continue supplying other services to
shows and events not subject to regulation, including registering
participants and coordinating event logistics, supplying show judges,
and promoting events. This rulemaking does not affect their freedom to
contract with event management to perform these services. The proposed
removal of the term was solely to reflect the fact that they would no
longer have a distinct role specifically pertaining to APHIS' Horse
Protection regulations.
We proposed adding 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.
A commenter stated that we should clarify in the definition that
HPIs are not APHIS representatives.
We agree, and will clarify the definition we proposed by adding a
sentence stating that ``HPIs are not employees of APHIS.''
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 proposed revising 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,'' with some illustrative examples. While we
received comments on what inspections should include and address them
elsewhere in this document, we received no comments on the definition
itself and are finalizing as proposed.
We proposed adding a definition for local area, which we define as
the area within a 10-mile radius of the horse show, horse exhibition,
horse sale, or horse auction. This term will be added in conjunction
with Sec. 11.13(b)(3), which requires 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 will be required to have
a farrier onsite unless they elect to enforce the HPA without recourse
to an inspector.
A commenter disagreed with the proposed definition of local area
and advised a 30-mile radius to compromise the local area, while
another commenter suggested it be increased to greater than 40 miles.
We are finalizing as proposed. A farrier may be required to provide
services to assist an APHIS representative or HPI in conducting an
inspection, such as removing a shoe. A 10-mile radius allows the on-
call farrier to be close enough to arrive at a show promptly if so
requested by an APHIS representative or HPI. This, in turn, forestalls
delays in conducting inspections. We also note that the first commenter
also stated that most horse events retain a farrier onsite, and the
other commenter assumed that farriers would not be onsite in
recommending a radius of more than 40 miles.
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
proposed removing the definition for lubricant and prohibiting the use
of lubricants on the limbs of all Tennessee Walking Horses and racking
horses; the current regulations allow the use of lubricants for
Tennessee Walking Horses and racking horses under certain
circumstances. Some commenters opposed prohibiting lubricants but were
silent on removal of the definition itself. We discuss our reasons for
prohibiting lubricants to prevent the soring of horses in this document
under the heading ``Prohibitions for Tennessee Walking Horses and
racking horses.''
We proposed revising 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 received no comments on
this proposed change to replace ``show manager'' with ``event manager''
and are finalizing as proposed.
We proposed adding a definition of participate 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. We received no comments specifically addressing this
proposed addition and are finalizing as proposed.
Person in the regulations means ``any individual, corporation,
company, association, firm, partnership, society, organization, joint
stock company, or other legal entity.'' We proposed revising the
definition by adding ``State or local government agency'' to the list
of illustrative examples of a person. This change highlights that State
and local government agencies also fall under the definition of person
for the purposes of enforcing the regulations.
[[Page 39203]]
We received no comments specifically addressing this proposed revision
and are finalizing as proposed.
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 proposed to remove the term from Sec.
11.1 because APHIS representatives performing Horse Protection duties
are no longer organized and managed by region. We received no comments
specifically addressing this revision and are finalizing as proposed.
The regulations currently define sore to mean, among other things,
that ``a person has engaged in a practice involving a horse and, as a
result of such . . . practice, such horse suffers, or can reasonably be
expected to suffer, physical pain or distress, inflammation, or
lameness when walking, trotting, or otherwise moving.'' Although we
proposed no changes to the definition of sore, one commenter asked if
the part of the definition referring to a person ``engaged in a
practice involving a horse'' is applicable to a scenario in which a
horse is injured in its stall.
We are finalizing as proposed. The regulatory definition of sore is
patterned after the statutory definition. The scenario mentioned by the
commenter is presumably accidental. If, in the professional judgment of
a qualified inspector, the horse is not sore, and presuming no other
noncompliance is identified, the horse could be shown under the
regulations. However, regardless of the commenter's question, if the
horse is injured it should first be evaluated to determine if it needs
medical attention.
Another commenter stated that the definition of sore is not
enforceable unless ``a person'' is actually observed committing any of
the actions prohibited under the definition.
We disagree with the commenter. The Act does not require that an
act of soring be observed. To the contrary, the Act defines ``sore''
based on the condition of the horse after the act has occurred. See 15
U.S.C. 1821(3) (defining ``sore'' as when ``an irritating or blistering
agent has been applied,'' ``any burn, cut, or laceration has been
inflicted,'' any tack, nail, screw, or chemical agent has been
injected,'' or ``any other substance or device has been used'').
Moreover, the commenter's suggestion would deprive properly qualified
and trained inspectors from making a professional judgment that a
practice that resulted in soring had occurred prior to the inspection.
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
proposed revising 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 received no comments specifically addressing this revision and are
finalizing as proposed.
We also are adding a definition for the term therapeutic treatment
to mean relating to 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
proposed 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. This definition corresponds
with the exceptions allowed under the definition of sore for any
practice involving therapeutic treatment of a horse by or under the
supervision of a licensed veterinarian.
A commenter stated that the definition should include a set time
limit to be part of the prescribed therapeutic use of pads and other
restricted items.
We are making no changes to the definition based on the comment, as
we believe a licensed veterinarian is generally best qualified to
determine specific treatment plans. We note that we proposed in Sec.
11.14(b)(5) that an expected length of treatment be included as part of
the veterinary record that is to be maintained by event management. All
such treatment plans are subject to APHIS review, in order to determine
whether the plans include the use of substances or practices to cause
or mask soring.
A few commenters asked that we include ``and such therapeutic
practices cannot supersede what is allowed within the HPA'' to the end
of the definition.
We are adding no such change to the definition because it is
unnecessary. The regulations are limited to what is required or
permitted in the Act and do not supersede it.
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, horse exhibition, horse
sale, or horse auction if such use causes or can reasonably be expected
to cause such horse to be sore. We are moving those prohibitions from
Sec. 11.2 to revised Sec. 11.6 and reserving Sec. 11.2 in the
regulations for future use. No commenters took issue with our proposal
to move the prohibitions to another section and reserve Sec. 11.2.
Non-Interference With APHIS Representatives
Current Sec. 11.3 contains the ``scar rule,'' which refers to the
presence of certain types of dermatologic conditions on the horse's
pastern and fore pastern suggesting that a horse has been sored.
We proposed removing the scar rule from this section. We are
including a revised version of it in Sec. 11.7, a section which we had
previously reserved in the proposed rule, under the heading
``Dermatologic conditions indicative of soring,'' or DCIS. We
originally proposed to move the revised scar rule to Sec. 11.6(b)(22)
but determined that it is thematically incompatible with other
provisions in Sec. 11.6(b). We discuss DCIS at greater length later in
this document.
The language we proposed adding to revised Sec. 11.3 prohibits
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. As we noted in the proposal, this amendment strengthens
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. We received no
comments specifically addressing this revision and are finalizing as
proposed.
Owners, Trainers, Exhibitors, Custodians, Transporters, and Any Other
Disqualified Person
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 veterinarian has
probable cause to
[[Page 39204]]
believe that a horse is sore. We proposed revising 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, have been moved to proposed Sec. 11.8.
The text we proposed for revised Sec. 11.4 requires 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 received no comments specifically on
this change and are finalizing this provision to prevent disqualified
persons from continuing to participate in shows and other events either
directly or indirectly through the aid of other identities or persons.
Appeal of Inspection Report
Section 11.5 currently requires the management of any horse show,
horse exhibition, horse sale, or horse 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 proposed moving these provisions for access to premises and
records to a new Sec. 11.9 and changing the heading of Sec. 11.5 to
read ``Appeal of inspection report.'' In the proposed rule, we proposed
to revise Sec. 11.5 to provide that any horse owner, trainer,
exhibitor, custodian, or transporter may appeal inspection report
findings all or in part to the Administrator. We also proposed that the
appeal would require a written statement contesting the inspection
finding(s) as well as any documentation or other information in support
of the appeal. We proposed that the appeal would have to be received by
the Administrator, preferably by electronic mail, or by U.S. mail,
within 21 business days of receipt of the inspection report. The
Administrator would then send a final decision to the person requesting
the appeal.
Several commenters addressed this proposed provision. One commenter
stated that ``inspection report'' is not a defined term in the proposed
rule.
As discussed below, the term does not appear in the revised
regulations and thus does not need to be defined in this final rule.
With that being said, to address the comment for the purposes of the
proposed rule, we would define an inspection report as a report that
details the finding resulting from an inspection to determine
compliance with the Act and regulations. Any alleged noncompliances of
the Act or regulations found as a result of the inspection would have
been noted in the report.
A few commenters supporting the proposed rule stated that appeals
should only apply to adjudicated cases, not inspection reports, adding
that the current regulations [Sec. 11.25] require HIOs to provide a
process to appeal penalties resulting from inspections--not the results
of the inspections themselves. One commenter stated that if a horse is
found sore under the proposed regulations and disqualified without
prosecution or penalty, there should be no appeal.
The Act directs the Secretary not to assess a penalty or issue a
cease-and-desist order without giving parties the right to appeal and
opportunity to a hearing. There will be no civil penalties assessed
without notice and an opportunity for a hearing, and all noncompliances
will be subject to enforcement by the Department. As explained below,
we have amended proposed Sec. 11.5 so that it addresses due process
and provides for appeal of a disqualification.
A commenter stated that the removal of the regulatory role of HIOs
leaves no recourse or appeal for a determination of violation and
appears to permit an appeal only if USDA determines there is ``probable
cause'' to do so, meaning it passes an absolute judgment upon its own
decision and imposes a 21-day limitations period on any appeal. The
commenter added that by imposing a 21-day deadline, USDA would now
require owners and trainers to challenge every disqualification or risk
having USDA later argue that any such challenge was waived.
Though unclear, the commenter's mention of ``probable cause'' is
apparently in reference to the provision for re-inspection of detained
horses under proposed Sec. 11.8(h), in which an alleged violator may
request re-inspection and testing of a horse provided that the request
is made to APHIS ``immediately after the horse has been examined by
APHIS representatives,'' and that ``an APHIS representative determines
that sufficient cause for re-inspection and testing exists.'' The 21-
day limitation period referenced by the commenter applies to appeal of
the inspection report under proposed Sec. 11.5. As discussed below,
the two are distinct processes, and, under the terms of the proposed
rule, a party could file an appeal to contest an inspection report
regardless of whether re-inspection was requested or not.
The intent of proposing appeal of an inspection report under Sec.
11.5 was to explore potential options to provide parties with a
recourse to appeal disqualification, including possible options to
resolve disputes before the show takes place. The 21 days permitted for
an appeal gives time for the alleged violator to prepare an appeal,
although the individual can choose to submit the appeal of
disqualification at any point up to 21 days. We did not consider it
likely that an alleged violator would appeal the inspection report
unless they had been disqualified. With that being said, the commenter
is correct that, under the specific terms of the proposed rule, there
was no direct recourse for appeal in the proposed rule following a
determination resulting in a disqualification. Moreover, for purposes
of due process, it is the disqualification itself, rather than the
inspection report, for which we think appeal should be afforded.
To address this matter, we are revising proposed Sec. 11.5 to
provide for appeal of the disqualification itself, rather than the
inspection report. As revised, it provides that any horse owner,
trainer, exhibitor, custodian (or any other person responsible for
entering the horse in an event), or transporter may appeal to the
Administrator for a decision on whether a disqualification decision
concerning a horse at a horse show, horse exhibition, horse sale, horse
auction, or other covered event was justified. There may only be one
appeal per disqualified horse per event; however, all parties with
interest in the disqualification may contribute to the appeal. (This
will preclude duplicative appeals and help focus agency resources on
expeditious evaluation of the appeals received.) To appeal, the horse
owner, trainer, exhibitor, custodian, or transporter must send a
written statement contesting the disqualification and include any
[[Page 39205]]
documentation or other information in support of the appeal. To receive
consideration, the appeal must be received by the Administrator,
preferably by electronic mail, to <a href="/cdn-cgi/l/email-protection#2d45425f5e485d5f4259484e594442436d585e494c034a425b"><span class="__cf_email__" data-cfemail="88e0e7fafbedf8fae7fcedebfce1e7e6c8fdfbece9a6efe7fe">[email protected]</span></a> within 21
days of the date the horse owner, trainer, exhibitor, custodian or
transporter received the disqualification that is the subject of the
appeal. In addition, we are adding an avenue to request expedited
review. If expedited review of the appeal is requested, this must be
noted as such, and information in support of this request must
accompany the appeal so that APHIS may ascertain whether expedited
review is warranted. The Administrator will send a final decision, in
writing via either electronic mail or postal mail, to the person
requesting the appeal as promptly as practicable. Additionally, the
above-mentioned provision for re-inspection in proposed Sec. 11.8(h),
in which an alleged violator may request re-inspection of a horse,
addresses due process concerns to some degree by giving the violator an
imminent opportunity to appeal a disqualification resulting from
inspection in the field. However, the re-inspection is contingent on
whether the inspector determines that sufficient cause exists for doing
so. If the horse passes a re-inspection before the show, there is no
disqualification based on inspection results. If the horse fails the
re-inspection, the disqualification stands, and the alleged violator
may appeal through the process in Sec. 11.5.
The same commenter stated that forcing owners and trainers to
challenge every disqualification on a purportedly inadequate record
does not comport with due process or allow them to be heard in a
meaningful manner. The commenter added that to comport with due
process, USDA must require any disqualification to be supported by
adequate evidence and documentation by requiring the inspector to
document and provide photographic evidence of any ``dermatologic
conditions,'' and allowing an owner or trainer to photograph or film an
inspection in order to raise challenges to that inspection at a later
date.
APHIS representatives and HPIs are required to document
noncompliant dermatologic conditions, as well as any other indications
of noncompliance.\22\ As the commenter correctly stated, due process
involves providing the custodian of the horse adequate notice of the
basis for the disqualification as soon as practicable and prior to the
deadline to appeal. We will do so by providing the inspection report to
the custodian following the disqualification so that, prior to leaving
the event, they have the information necessary to mount an appeal based
on dispute of material fact. With that being said, owners and trainers
are free to record inspections from a position outside the inspection
area.
---------------------------------------------------------------------------
\22\ APHIS representatives and other qualified persons prepare
this documentation as part of fulfilling the notification
requirement for reporting sore horses to management in accordance
with section 4 of the Act (15 U.S.C. 1823(b)). The Horse Protection
program also internally requires that such documentation be prepared
and maintained for reporting and enforcement purposes by APHIS
representatives and qualified persons inspecting horses.
---------------------------------------------------------------------------
One commenter stated that a fundamental tenet of due process
requires that parties receive fair notice of the specific standards by
which they are being deprived of any property interest. On this point,
they stated that the standards for an HPA violation under the existing
regulations and the proposed rule are vague and fail to provide
adequate notice, particularly the revised scar rule's reference to
``dermatologic conditions.''
We disagree that the regulations do not provide persons with
knowledge of what might constitute a violation, including with respect
to dermatologic conditions. The prohibitions on particular action
devices, types of pads and wedges, and substances are clear and
unambiguous. Likewise, under the regulations as revised in this final
rule, dermatologic conditions cannot be any conditions whatsoever, but
only those that an HPI or APHIS representative determines to be
indicative of soring as that term is defined in the statute, including
irritation, moisture, edema, swelling, redness, epidermal thickening,
and loss of hair (patchy or diffuse). Moreover, following the
disqualification, the HPI or APHIS representative will disclose the
specific basis for the disqualification through issuance of an
inspection report and the party involved may contest the
disqualification through appeal.
A commenter asked us what happened to the provisions in current
Sec. 11.25, particularly in light of a discrepancy between the
preamble and the regulatory text. The preamble had stated that the
regulatory text of the proposed rule contained a parallel process in
Sec. 11.5 ``for alleged violators to appeal penalties resulting from
inspections conducted by APHIS representatives or HPIs appointed by
management,'' yet the regulatory text contained no such parallel
process.
The provisions in Sec. 11.25 give authority to HIOs to establish
and enforce minimum penalties for violators. Because we proposed to
relieve HIOs of all regulatory roles and responsibilities under the
HPA, there was no longer a need for the provisions in that section.
With regard to the discrepancy between the preamble and the regulatory
text, we initially intended to draft a separate process to establish
and enforce minimum penalties for violators, as well as the right for
violators to contest any attempt to enforce such penalties. Later on,
during development of the proposed rule, we determined that the
existing right to a hearing provided for in the Act, the process for
which is described in 7 CFR part 1, contains such a process, and that a
separate process would be duplicative and potentially confusing. The
regulatory text of the proposed rule reflects the Agency's intent.
With that being said, as noted above, we are explicitly providing
for appeal of disqualification under Sec. 11.5 in this final rule.
In 2016, we published a separate proposed rule to revise the HPA
regulations in the Federal Register (81 FR 49112-49137, Docket No.
APHIS-2011-0009). In response to the 2016 proposal, several commenters
submitted due process concerns over reviews of pre-show inspection
findings of soring and subsequent disqualification from showing. Some
commenters at the time requested that we develop a pre-show process
whereby owners and trainers may contest and seek immediate review of a
finding that a horse is sore. They also suggested that when USDA
diagnoses a horse as sore after initially being passed by a DQP, the
horse should be allowed to be shown until there is a final decision in
the matter, i.e., until due process is completed.
We suggested in the proposal to this final rule that one possible
solution involves conducting pre-show inspections far enough in advance
of the exhibition or show to allow for an opportunity to be heard
before the event. A key problem with this solution, however, is that
the farther in advance of a show that an inspection takes place, the
more time there is to sore a horse after the inspection and before the
show. Monitoring protocols would need to be developed and staffed to
ensure horses are not sored following inspection. Moreover, under the
current event 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
[[Page 39206]]
would also entail deploying more inspectors to shows and developing
monitoring protocols to ensure horses are not sored following
inspection.
We acknowledged in the proposal that there may be other means of
addressing the issue and requested public comment regarding other
alternatives to a pre-show review process, including consideration of
regulatory bodies, statutory authorities, or incentives and
disincentives, including withholding or forfeiture of prize money. To
determine the feasibility of a pre-show inspection and review, we asked
for comments addressing the particulars of such a review, including
where and when the pre-show inspection might be conducted, how
monitoring of horses after inspection would take place to prevent
tampering, and what parties should be involved in the review process.
We received several comments supporting and opposing a pre-show
inspection that would allow for reviews of soreness findings.
Most commenters addressing this subject agreed that such a review
is not feasible under the way that shows are currently conducted.
Several commenters stated that it is not possible to adjudicate in the
limited timeframe between examining a horse and competition, with one
adding that the point is to have qualified inspectors undertaking
examinations and not finding ways to override their findings. Another
commenter stated that it is unacceptable to propose that the findings
of a qualified, unbiased professional inspector should be challenged
and overridden in the moment at an event. The commenter added that the
HPA requires that a horse in violation must be prohibited from being
shown, and that any delay in or failure to invoke this prohibition
would be in violation of the Act. One commenter opined that concerns
about due process originated in the conflicts seen when a DQP would
`pass' a horse and the APHIS inspector would subsequently `fail' the
horse as sored, and that with abolishment of the DQP program and the
use of only inspectors screened and authorized by APHIS, a pre-show
review to resolve such conflicts would be unnecessary.
We agree with commenters that it is not feasible to adjudicate in
the limited timeframe between examining a horse and competition; we did
not receive comments that suggested alternative show practices that
would make a pre-show review process practicable. The HPA prohibits
showing or exhibiting horses determined as sore from showing, with a
litigation risk inherent in allowing horses that may be sore to show.
Also, the longer the interval between an inspection and the event, the
more opportunity there is to sore a ``cleared'' horse. As we indicated
in our recent proposal, section 4 (15 U.S.C. 1823(a)) of 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. Specifically, the statute and
regulations require management to (among other actions) 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.
Further, section 5 (15 U.S.C. 1824) requires that management disqualify
such horses by listing the failure to do so as an ``unlawful act.''
Because of these statutory considerations, and because commenters could
not provide a meaningful way to allow for a pre-show hearing following
an inspection resulting in disqualification, we consider the appeals
process in this final rule, which allows for prompt post-
disqualification appeal, due process regarding the deprivation caused
by disqualification. Further, the re-inspection provision in proposed
Sec. 11.8(h) addresses due process concerns to some degree by giving
an alleged violator an opportunity to appeal a disqualification
resulting from inspection in the field provided sufficient cause for
doing so is determined by an APHIS representative. If a horse passes a
re-inspection before the show, there is no disqualification based on
inspection results.
A commenter opposed to the proposed rule stated that under the
current system, horse owners have no right to raise a challenge and
have their horses shown if they are disqualified before a show, and
that the rule offers no solution to this problem. The commenter stated
that to address due process concerns with its enforcement efforts, USDA
must begin by looking at other breeds covered under the HPA and
consider an objective inspection system that utilizes blood testing,
urinalysis, thermography, x-rays/radiology, and gas chromatography-mass
spectrometry. The commenter further recommended that the program be
overseen by an independent inspection entity under the current HIO
structure or through some other new structure as is currently allowed
in other breed programs.
These comments do not offer a workable solution. No such tests
listed by the commenter can definitively rule out that a horse has been
sored, and the commenter discounted a determination of soring by a
trained inspector who has palpated the horse and found sensitivity to
be present. As we stated above, the NAS study considered this part of
the inspection protocol to be the ``gold standard'' for detecting local
pain and inflammation.\23\ It is also worth noting that one commenter
stated that the practice of disqualifying a horse based on an adverse
inspection finding (i.e., not allowing the horse to be shown/
exhibited), with appeals possible after the fact, is consistent with
what is done in other breeds. To that end, we note that one of the
commenter's suggestions would entail retention of the regulatory
functions of HIOs, which, for reasons discussed in the proposed rule
and this final rule, we are abolishing.
---------------------------------------------------------------------------
\23\ NAS study, page 46.
---------------------------------------------------------------------------
Finally, we note that the commenter failed to address critical
details regarding how any pre-show review process could achieve the
statutory prohibition against showing sored horses. Details that the
commenter did not address in their recommendation include where and
when the inspection should take place if a pre-show review process will
be afforded, who should be physically present for the review process,
and how the health and safety of the horse should be monitored after
the inspection to make sure the horse is not subsequently sored while
review is ongoing. Because of these deficiencies, and in light of the
foregoing considerations that counsel against pre-show review
processes, we do not consider the commenter to have provided a
meaningful recommendation to afford pre-deprivation due process.
One commenter asked who would be appointed to a pre-show review
process, noting that reviewers would have to be on site in addition to
the inspectors, and wanted to know how APHIS would fill the gap.
We cannot answer the commenter's question as to whom we would
appoint, as we only asked for comments about the feasibility of
establishing such a review process.
We also asked how a pre-show review process might implicate or
interact with the re-inspection process currently located in Sec.
11.4(h), which we are revising and moving to new Sec. 11.8(h). As we
note above, this re-inspection provision provides a pre-show means to
appeal an initial disqualifying inspection in the field by requesting a
second inspection provided that sufficient cause for reinspection
exists and an APHIS representative is available to perform the re-
inspection. If a re-inspection is granted and the horse
[[Page 39207]]
passes, there is no disqualification based on inspection results. We
received no comments specifically on this point.
Finally, a few commenters provided specific ideas for
disincentivizing soring, as we requested. One commenter suggested that
any horse found to be sore not be allowed to show for 6 months. The
commenter also recommended making the offspring of a horse found to be
sore more than one time ineligible for breed registration, as well as
not allowing a sore horse to be sold for 2 years after diagnosis, which
would reduce the value of such horses and disincentivize soring.
We think this final rule is adequate to disincentivize soring.
Therefore, we do not think the measures proposed by the commenter, even
if they fall within the bounds of the Act, are necessary.
A commenter suggested that the Act be strengthened by fining
violators $5,000 for the first offense, $25,000 for the second,
$150,000 for the third, and taking the horse in question for a fourth
offense.
We are making no change in response to the commenter's suggestion.
Penalties are enshrined in the Act and require Congressional action to
change.
Another commenter asked why the rule does not include the
imposition of extended disqualification periods, up to and including
lifetime disqualifications, and to consider including extended
disqualification periods for sore horses or offenders with multiple
violations.
These periods are listed in the Act and cannot be changed without
an act of Congress.
Prohibitions To Prevent Soring
Current Sec. 11.2, ``Prohibitions concerning exhibitors,''
contains general and specific prohibitions on certain devices, methods,
practices, or substances used on any horse at any horse show, horse
exhibition, horse sale, or horse auction covered under the Act. These
current prohibitions already include prohibitions intended specifically
for Tennessee Walking Horses and racking horses regarding substances
and duration of workouts in paragraphs (c) and (d) respectively.
We proposed to revise Sec. 11.6 and retain the current Sec. 11.2
heading ``Prohibitions concerning exhibitors.'' As with current Sec.
11.2, revised Sec. 11.6 lists general and specific prohibitions on
certain devices, methods, and practices used on any horse at any horse
show, horse exhibition, horse sale, or horse auction. We also proposed
to include new prohibitions in Sec. 11.6(c) specific to Tennessee
Walking Horses and racking horses.
General Prohibitions
Current paragraph Sec. 11.2(a) contains a general prohibition on
the use of any device, method, practice, or substance on any horse at
any horse show, exhibition, sale, or auction if that use causes or can
reasonably be expected to cause a horse to be sore.
We proposed in Sec. 11.6(a) to include a similar general
prohibition on the use of any device, method, practice, or substance.
We also proposed adding a provision under the general prohibitions
prohibiting the use on a horse of any device, method, practice, or
substance that masks soring.
Under section 5 (15 U.S.C. 1824(7)) of the Act, APHIS has the
authority to prohibit any equipment, device, paraphernalia, or
substance that a horse is wearing or bearing which the Secretary by
regulation under section 9 (U.S.C. 1828) of the Act prohibits to
prevent the soring of horses. USDA considers prohibiting items and
substances that mask soring to be essential in helping to prevent the
soring of horses, as masking can impede efforts to detect soring
through inspections. APHIS currently considers the use of substances to
mask soring as a violation of the Act and regulations and conducts
enforcement accordingly. Our addition of the prohibition on masking in
the general prohibitions is intended to underscore what the Act already
prohibits. (We also proposed prohibiting lubricating substances.)
As masking typically involves the use of substances, including
lubricants, we address comments relating to masking below under
``Lubricants.''
Prohibited Devices, Equipment, and Practices
Paragraph (b) of current Sec. 11.2, ``Specific prohibitions,''
prohibits on any horse the use of certain devices, methods, practices,
and substances at any covered horse show, exhibition, sale, or auction.
Under the current regulations, some restricted uses are permitted
provided they do not exceed the specifications accompanying each.
In proposed Sec. 11.6(b), ``Prohibited devices, equipment, and
practices,'' we similarly list devices, equipment, and practices that
are prohibited on any horse at a horse show, horse exhibition, horse
sale, or horse auction, including Tennessee Walking Horses and racking
horses. We address specific comments we received on the list below.
We noted in the proposal that Sec. 11.6(b) will continue to allow
breeds other than Tennessee Walking Horses and racking horses to use
certain rollers, chains, and bell boots weighing 6 ounces or less, as
well as pads that elevate or change the angle of hooves 1 inch or less
at the heel, and certain toe extensions, shoes, and metal hoof bands.
Except for Tennessee Walking Horses and racking horses, for which all
action devices are prohibited under proposed paragraph (c)(1), we also
proposed in paragraph (b) to continue to allow the use of an action
device on each limb of a horse if the device weighs 6 ounces or less.
As proposed, we are moving from current Sec. 11.2 to Sec.
11.6(b)(1) the provision prohibiting more than one action device
permitted under this section on any limb of a horse. We did not receive
comments specific to that change and are finalizing as proposed.
In paragraph (b)(2), we are moving from current (b)(1) the
prohibition on all beads, bangles, rollers, and similar devices, with
the exception of rollers made of lignum vitae (hardwood), aluminum, or
stainless steel, with individual rollers of uniform size, weight and
configuration, provided each such device may not weigh more than 6
ounces, including the weight of the fastener. We did not receive
comments specific to that provision and are finalizing as proposed.
In paragraph (b)(3), we are moving from current Sec. 11.2(b)(2)
the prohibition on chains weighing more than 6 ounces each, including
the weight of the fastener. We did not receive comments specific to
this provision and are finalizing as proposed. (We received comments on
the prohibition of chains and chain weights pertaining to Tennessee
Walking Horses and racking horses, which we address under ``Action
Devices, Pads, and Wedges'' below.)
In paragraph (b)(4), we are moving from current Sec. 11.2(b)(3)
the prohibition on chains with links that are not of uniform size,
weight, and configuration and chains that have twisted links or double
links. We did not receive comments specific to that provision and are
finalizing as proposed.
In paragraph (b)(5), we are moving from current Sec. 11.2(b)(4)
the prohibition on chains that have drop links on any horse that is
being ridden, worked on a lead, or otherwise worked out or moved about.
We did not receive comments specific to that provision and are
finalizing as proposed.
In paragraph (b)(6), we are moving from current Sec. 11.2(b)(6)
the prohibition on chains or lignum vitae, stainless steel, or aluminum
rollers which are not smooth and free of protrusions, projections,
rust, corrosion, or rough or sharp edges. We did not receive
[[Page 39208]]
comments specific to that provision and are finalizing as proposed.
In paragraph (b)(7), we are moving from current Sec. 11.2(b)(7)(i)
the prohibition on boots, collars, or any other devices, with
protrusions or swellings, or rigid, rough, or sharp edges, seams or any
other abrasive or abusive surface that may contact a horse's leg. We
did not receive comments specific to that provision and are finalizing
as proposed.
In paragraph (b)(8), we are moving from current Sec.
11.2(b)(7)(ii) the prohibition on boots, collars, or any other devices
that weigh more than 6 ounces, except for soft rubber or soft leather
bell boots and/or quarter boots that are used as protective devices. We
did not receive comments specific to that provision and are finalizing
as proposed.
In paragraph (b)(9), we are moving from current Sec. 11.2(b)(8)
the prohibition on pads or other devices on horses up to 2 years old
that elevate or change the angle of such horses' hooves in excess of 1
inch at the heel. While we received many comments on the prohibition of
pads on Tennessee Walking Horses and racking horses, we did not receive
comments on this specific provision as it pertains to Sec. 11.2(b) and
are finalizing as proposed.
In paragraph (b)(10), we are moving from current Sec. 11.2(b)(9)
the prohibition on any weight on horses up to 2 years old, except a keg
or similar conventional horseshoe, and any horseshoe on horses up to 2
years old that weighs more than 16 ounces.
Some commenters stated that USDA should prohibit weighted shoes on
any Tennessee Walking Horses and racking horses at covered events
because they can increase the potential for injury in the form of
tissue damage or overexertion of the musculature. One commenter
cautioned against an outright prohibition on weighted shoes, noting
that all horseshoes have weight, and proposed a maximum shoe weight
limit of 16 ounces, while other commenters suggested setting a similar
shoe weight limit for all horses. Another commenter stated that some
Tennessee Walking Horses are wearing shoes made from metals heavier
than steel or iron, and that the heavier shoes are inducing soring even
in horses in flat-shod classes. To prohibit the use of heavier metals
for shoes, some commenters recommended that the shoes required for
horses of all ages be made completely of rubber, plastic, aluminum, or
steel. On the other hand, some commenters asked that we continue to
allow heavy shoes for horses that tend to be overly ``pacey.''
We are finalizing as proposed. While we limit shoe weights on
horses up to 2 years old to 16 ounces or less, there is no scientific
literature that we are aware of on which we can base a prohibition on
shoes weighing more than 16 ounces on older horses at this time.
Therefore, we are not including a weight limit on shoes for horses 2
years and older. We are actively collecting data on the usage and
effects of shoes weighing more than 16 ounces on horses and will
consider prohibiting such shoes in a future rulemaking, if warranted.
Another commenter stated the proposed rule is insufficient because
it allows the use of ``a keg or similar conventional horseshoe''
without a weight limitation.
The proposed provision in paragraph (b)(10) actually limits
horseshoe weights on horses up to 2 years old to 16 ounces or less,
which includes a ``keg or similar conventional horseshoe.'' However, to
ensure that the provision is clear on this point we are including the
words ``that weighs 16 ounces or less'' after the words ``keg or
similar conventional horseshoe.''
Many commenters asked that hoof bands and any weight attached to
the hoof or horseshoe (other than a keg or similar conventional
horseshoe itself, including the allowable caulk and any studs or
material used on the bottom of the shoe for traction) weighing more
than 16 ounces should be prohibited on horses of any age in the three
breeds known to be subjected to soring. We are not making any changes
to the regulations regarding hoof bands or horseshoe weights.
Horseshoes are not a prohibited item and hoof bands, when used in
accordance with proposed paragraph (b)(17), can serve to secure the
shoe to the hoof. As we note above, we continue to collect data on the
effects of shoes weighing more than 16 ounces on horses.
A commenter stated that if USDA allows heavy shoes, it should
require management to inform APHIS if heavy shoes will be permitted at
a show (extending Sec. 11.16(a)(7) accordingly).
Proposed Sec. 11.16(a)(7) requires that management contact APHIS
if they plan to allow any horse to be shown, exhibited, or sold
undergoing therapeutic treatment with any of the items otherwise
prohibited in Sec. 11.6. The proposed regulations do not consider
shoes weighing more than 16 ounces on horses 2 years old and older to
be a prohibited item. We are not making a change to the regulations
that would require management to inform APHIS if they plan to allow
heavy shoes because absent such a prohibition, we do not expect any
show to prohibit such shoes. We continue to gather information on the
effects of shoes weighing more than 16 ounces and will consider future
limitations on such shoes if we determine their prohibition is
necessary to prevent the soring of horses.
The same commenter added that whether or not management plans to
allow horses to wear pads or wedges, if they plan to allow the use of
heavy shoes on horses, a farrier should be required to be present or on
call to pull a shoe for inspection if called for by an APHIS
representative or HPI.
The farrier requirement stands for any horse show that has
appointed an APHIS representative or HPI to conduct inspections, as
even horses wearing shoes that are not heavy may need to have a shoe
pulled upon request of an inspector to check for conditions such as
pressure shoeing. A trained farrier's presence is important because
only a farrier can safely remove or replace shoes on a horse.
Several commenters cited possible problems with shoe width impeding
proper inspection of the horse's hooves. Some commenters recommended a
requirement that shoe dimensions cannot exceed 1\1/2\ inches wide by
\1/2\ inch thick and cannot obstruct the use of hoof testers on the
sole and frog, and one suggested that APHIS adopt language from other
breed disciplines by adding to the provision ``the sole and entire frog
of the foot must be visible.''
We are not setting specific dimension requirements on shoes because
we reviewed research available regarding horseshoe dimensions and did
not determine there was sufficient evidence to justify any restrictions
at this time. APHIS will collect data regarding the use of these shoes
and consider horseshoe dimension restrictions in a future rulemaking if
we determine they are necessary to prevent the soring of horses. We
note that APHIS may examine or require that a shoe be removed at any
time if necessary to determine if a horse is sore.
In paragraph (b)(11), we are moving from current Sec. 11.2(b)(10)
the prohibition on artificial extension of the toe length, whether
accomplished with pads, acrylics, or any other material or combinations
thereof, that exceeds 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. The artificial extension must be measured
from the distal portion of the hoof wall at the tip of the toe at a 90-
[[Page 39209]]
degree angle to the proximal (foot/hoof) surface of the shoe.
Some commenters stated that, if they are to remain, recommended toe
extensions should be within the limit of 50 percent of the natural hoof
length as measured from the hairline of the hoof capsule to 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. One commenter
recommended that the maximum toe length be 4\1/2\ inches, including the
thickness of the shoe, measured as specified in United States
Equestrian Federation (USEF) General Rule 510.\24\
---------------------------------------------------------------------------
\24\ To view General Rule 510, go to <a href="https://www.usef.org/forms-pubs/s9SeSv4S0Sc/gr--general-rules">https://www.usef.org/forms-pubs/s9SeSv4S0Sc/gr--general-rules</a>.
---------------------------------------------------------------------------
We are finalizing as proposed. To make a determination about the
specific lengths recommended by commenters, we will require more
research on artificial toe lengths used for other horse breeds, most of
which are regulated under USEF.
Another commenter stated that allowing toe extensions in proposed
Sec. 11.6(b)(11) is open to abuse because ``natural hoof length'' can
be manipulated to far exceed ideal hoof length, and then a further toe
extension is permitted beyond that. The commenter added that artificial
toe extensions should be prohibited entirely.
We assume the commenter's concern is not with the provision as
applied in Sec. 11.6(b)(11), but with artificial toe extensions and
soring in Tennessee Walking Horses and racking horses, insofar as
soring is rarely practiced and confers no competitive advantage to
horses that do not practice the ``big lick'' step in Performance
division events. We note that all artificial toe extensions will be
prohibited on any Tennessee Walking Horse or racking horse unless such
horse has been prescribed and is receiving therapeutic treatment as
approved in writing by a licensed veterinarian. However, even if a
Tennessee Walking Horse or racking horse is wearing artificial toe
extensions under a therapeutic exemption, the toe extension cannot
exceed the restrictions for all horses in Sec. 11.6(b)(11) and (12) of
this final rule. To the commenter's point, regulations cannot prescribe
``ideal'' hoof length, but a prohibition of all toe extensions unless
therapeutically required can be considered in a future rulemaking if
evidence arises that supports such a prohibition in other horse breeds.
In paragraph (b)(12), we are moving from current Sec. 11.2(b)(11)
the prohibition on toe length that does not exceed the height of the
heel by 1 inch or more. The length of the toe must be measured from the
coronet band, at the center of the front pastern along the front of the
hoof wall to the ground. The heel must be measured from the coronet
band, at the most lateral portion of the pastern, at a 90-degree angle
to the ground, not including normal caulks at the rear of a horseshoe
that do not exceed \3/4\ inch in length. That portion of caulk at the
rear of a horseshoe in excess of \3/4\ of an inch must be added to the
height of the heel in determining the heel/toe ratio.
A few commenters stated that caulks exceeding \3/4\ of an inch
should be prohibited entirely.
We are finalizing as proposed. We will consider such a prohibition
in a future rulemaking if evidence is identified supporting such a
prohibition. As it stands now, caulks exceeding \3/4\ of an inch must
have the extra height considered in heel/toe ratio measurements.
In paragraph (b)(13), we are moving from current Sec. 11.2(b)(12)
the prohibition on pads that are not made of leather, plastic, or a
similar pliant material. While we received numerous comments regarding
the prohibition on pads for Tennessee Walking Horses and racking
horses, we received none that opposed our moving this specific
provision to proposed Sec. 11.6(b) and we are finalizing as proposed.
In paragraph (b)(14), we are moving from current Sec. 11.2(b)(13)
the prohibition on any object or material inserted between the pad and
the hoof other than acceptable hoof packing, which includes pine tar,
oakum, live rubber, sponge rubber, silicone, commercial hoof packing,
or other substances used to maintain adequate frog pressure or sole
consistency. We proposed and are adding a prohibition on the use of
acrylic or other hardening substances as hoof packing.
A commenter stated that eliminating non-therapeutic pads and wedges
in proposed Sec. 11.6(c)(3) means that Sec. 11.6(b)(14) should be
revised to prohibit all objects or materials inserted into the hoof, as
most hoof-packing materials require a pad to hold them in place.
We are making no changes in response to the commenter. Certain pads
continue to be permitted for breeds other than Tennessee Walking Horses
and racking horses not covered under Sec. 11.6(c). Moreover, pads for
therapeutic treatment can still be prescribed by a licensed
veterinarian in accordance with proposed Sec. 11.6(c)(3) for Tennessee
Walking Horses and racking horses.
We proposed in paragraph (b)(15) to move from current Sec.
11.2(b)(14) the prohibition on single or double rocker-bars on the
bottom surface of horseshoes which extend more than 1\1/2\ inches back
from the point of the toe, or which would cause, or could reasonably be
expected to cause, an unsteadiness of stance in the horse with
resulting muscle and tendon strain due to the horse's weight and
balance being focused upon a small fulcrum point.
A commenter asked that we develop a regulatory definition in Sec.
11.6(b)(15) that clearly distinguishes between permitted shoes and
prohibited ``non-conventional'' shoes and asked that we include other
specific types of abusive shoes that APHIS wants to ban in order to
prevent soring.
We are finalizing as proposed. Requirements pertaining to shoes are
addressed in the discussion of Sec. 11.6(b)(10); questions about the
regulatory status of a specific shoe type can be directed to APHIS.\25\
---------------------------------------------------------------------------
\25\ Send email to <a href="/cdn-cgi/l/email-protection#dab2b5a8a9bfaaa8b5aebfb9aeb3b5b49aafa9bebbf4bdb5ac"><span class="__cf_email__" data-cfemail="c0a8afb2b3a5b0b2afb4a5a3b4a9afae80b5b3a4a1eea7afb6">[email protected]</span></a>, or U.S. mail to
USDA/APHIS/AC, 2150 Centre Ave. Building B, Mailstop 3W11, Fort
Collins, CO 80526-8117.
---------------------------------------------------------------------------
We proposed in paragraph (b)(16) to move from current Sec.
11.2(b)(15) the prohibition on metal hoof bands, such as used to anchor
or strengthen pads and shoes, if placed less than \1/2\ inch below the
coronet band. In paragraph (b)(17), we are moving from Sec.
11.2(b)(16) the prohibition on metal hoof bands that can be easily and
quickly loosened or tightened by hand, by means such as, but not
limited to, a wing-nut or similar fastener.
A commenter asked why an exhibitor is not allowed to correct a
loose hoof band and re-show.
We expect exhibitors presenting for inspection to check their horse
for any compliance issues prior to actually presenting. If after the
horse has passed inspection and prior to showing the custodian
identifies that the hoof band has become loose, only then can the band
be adjusted as needed under the supervision of an HPI authorized by the
event or an APHIS representative.
In paragraph (b)(18), we proposed to move from current Sec.
11.2(b)(17) the prohibition on any action device or any other device
that strikes the coronet band of the foot of the horse except for soft
rubber or soft leather bell boots that are used as protective devices.
We did not receive comments specific to that provision and are
finalizing as proposed.
In proposed paragraph (b)(19), we are moving from current Sec.
11.2(b)(18) the prohibition on shoeing a horse or
[[Page 39210]]
trimming a horse's hoof in a manner that will cause such horse to
suffer, or can reasonably be expected to cause such horse to suffer
pain or distress, inflammation, or lameness when walking, trotting, or
otherwise moving. To this prohibition, we added language not in current
paragraph (b)(18) prohibiting paring the frog or sole in such a manner
to cause the pain and distress described above, and prohibiting
bruising of the hoof or any other method of pressure shoeing.
A commenter asked if a horse would be considered sore if a farrier
accidentally trims a hoof too short, or if a ride across hard, rocky
ground results in an accidental bruise to the sole.
We are finalizing as proposed. We note that under proposed Sec.
11.6(b)(19), trimming a horse's hoof in a manner that will cause such
horse to suffer, or can reasonably be expected to cause such horse to
suffer pain or distress, inflammation, or lameness when walking,
trotting, or otherwise moving is prohibited. Also, bruising of the hoof
or any other method of pressure shoeing is prohibited. Regardless of
the intent of the farrier, any horse with such injuries entered into an
event may be considered sore.
Another commenter stated that in all the APHIS ``violations''
issued there is not one pressure shoeing violation, so the
justification for eliminating the pad on that basis is unfounded.
We disagree with the commenter about pressure shoeing. Pressure
shoeing involves either cutting a significant portion of or causing
significant trauma to a horse's hoof immediately before nailing a shoe
to the hoof, and can cause or be expected to cause the horse to suffer
pain or distress when moving. Further, the commenter is incorrect in
stating there are no pressure shoeing violations. APHIS has issued at
least one violation, in 2018, for pressure shoeing that is specifically
a soring violation, but the number of violations issued for pressure
shoeing is not indicative of its ability to cause pain and suffering in
horses.
In paragraph (b)(20), we are moving from current Sec. 11.2(b)(19)
the prohibition on lead or other 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. In addition, pads
may not be hollowed out for the purpose of inserting or affixing
weights, and weights may not extend below the bearing surface of the
shoe. Hollow shoes or artificial extensions filled with mercury or
similar substances are also prohibited in this paragraph.
While some commenters specifically asked us to consider prohibiting
any weight of more than 16 ounces attached to the hoof or horseshoe on
Tennessee Walking Horses, racking horses, and Spotted Saddle Horses, we
received no comments specific to other prohibitions of this paragraph
and are finalizing as proposed. Those comments are addressed under the
discussion of paragraph (b)(10) above.
Stewarding
In proposed paragraph (b)(21), we added a prohibition on the use of
whips, cigarette smoke, or similar actions or paraphernalia to distract
a horse or to otherwise impede the inspection process during an
examination, including but not limited to, holding the reins less than
18 inches from the bit shank.
The NAS study committee's earlier-cited observation of 61
inspection videos revealed numerous incidents of stewarding during the
standing inspection that were not dealt with by the DQP, including
holding the reins closer than 18 inches from the bit, often just below
or on the shank. The committee noted that these restraint tactics can
create a distraction during the palpation procedure by inducing pain in
the oral cavity.\26\ APHIS' experience in conducting inspections is
consistent with NAS' observation.
---------------------------------------------------------------------------
\26\ NAS study, page 49.
---------------------------------------------------------------------------
A commenter stated it is necessary to hold the reins closer to the
bit in order to control a horse undergoing palpation, as any flinch or
movement from the horse will cause it to be turned down. We respond
that such movements from a horse may indicate pain sensitivity upon
palpation consistent with soring. An experienced, properly trained
inspector can distinguish incidental movements of the horse from the
specific behavioral signs of a pain response. The NAS study discusses
several such behavioral indications of pain that are evaluated in
veterinary clinical practice.\27\
---------------------------------------------------------------------------
\27\ NAS study, pages 54-65.
---------------------------------------------------------------------------
Another commenter recommended that in the prohibition, ``alligator
clips'' be inserted after ``smoke,'' adding that a far more detailed
description of stewarding is needed in the regulations.
We are making no changes in response to the commenter's
recommendation, as it is not possible to include an exhaustive list of
all things that could be used to distract a horse or otherwise impede
the inspection process. The prohibition of ``other stewarding actions
or paraphernalia to distract a horse or to otherwise impede the
inspection process during an examination'' includes alligator clips and
anything else used to distract a horse or otherwise impede the
inspection process during an examination.
Prohibitions for Tennessee Walking Horses and Racking Horses
Under proposed Sec. 11.6(c), we prohibited pads, action devices,
artificial toe length extension, and lubricants on any Tennessee
Walking Horse or racking horse at any horse show, horse exhibition,
horse sale, or horse auction, unless such horse has been prescribed and
is receiving therapeutic treatment using pads, wedges, toe length
extensions, or substances as approved in writing by a licensed
veterinarian in accordance with proposed Sec. 11.14(b).
The current regulation (Sec. 11.2(b)) prohibits the use of a chain
or other action device on each limb of a horse if the device weighs
more than 6 ounces. Therefore, the proposal to prohibit all action
devices on Tennessee Walking Horses and racking horses under Sec.
11.6(c)(1) has the effect of extending the existing prohibition to
action devices weighing 6 ounces or less.
We also proposed under Sec. 11.6(c)(3) to prohibit all pads and
wedges on any Tennessee Walking Horse or racking horse at any horse
show, unless prescribed for therapeutic treatment. Under the existing
regulations, these horses were allowed to wear pads or wedges that
elevate the angle of horses' hooves less than 1 inch at the heel. Under
this proposal, no pads or wedges would be allowed, regardless of
whether they create an angle less than 1 inch at the heel, unless a
therapeutic exemption has been obtained.
In the proposed rule, we provided support indicating that pads,
wedges, and action devices can, on their own or in conjunction with
other substances and practices, cause soring. For example, with respect
to pads, we noted that they can ``cause a horse's foot to strike the
ground at an unnatural angle'' and ``can also induce pain and soring
over time.'' (88 FR 56936). We also noted in the proposed rule 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,'' that
is, in competitions in which the use of soring could confer a
``significant performance advantage'' (88 FR 56937).
We further stated that, based on our observations and experience,
including
[[Page 39211]]
``compliance inspections, investigations, enforcement of alleged
violations, oversight of industry-based inspection programs, and
outreach to the horse industry . . . a relationship continues to exist
between the use of certain permitted devices and soring, notably among
Tennessee Walking Horses and racking horses.'' (ibid). Finally, we
indicated that this relationship between the use of devices and soring
is not present in Morgans, American Saddlebreds, and other gaited
breeds, and indicated that soring is rarely detected in flat-shod
Tennessee Walking Horses and racking horses.
In other words, in the proposed rule we advanced two bases for the
proposed prohibition on the use of pads, wedges, and action devices for
Tennessee Walking Horses and racking horses: First, that pads, wedges,
and action devices may, under certain circumstances, and particularly
in conjunction with other substances and practices, cause soring; and
second, that the use of pads, wedges, and action devices among
Tennessee Walking Horses and racking horses is strongly associated with
soring.
In the proposed rule, we also proposed under Sec. 11.6(c)(2) to
prohibit all artificial extension of the toe length in Tennessee
Walking Horses and racking horses unless a horse has been prescribed it
for therapeutic treatment. This proposal removes the existing allowance
for artificial toe extensions on Tennessee Walking horses and racking
horses that are less than 50 percent of the natural hoof length. We
explain our rationale for the proposed ban on such artificial
extensions below, under ``Artificial Toe Extensions.''
Finally, we also proposed under Sec. 11.6(c)(4) to prohibit the
application of lubricants above the hoof of any Tennessee Walking or
racking horse at any horse show, exhibition, sale, or auction, unless
approved in writing by a licensed veterinarian for therapeutic use.
Under the current regulations in Sec. 11.2(c), all other substances
are already prohibited 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, horse exhibition, or horse sale
or auction. We explain our rationale for the proposed ban on lubricants
below, under ``Lubricants.''
Before we discuss the comments we received on the proposed
prohibitions on pads, wedges, and action devices, we feel it important
to situate them within the historical context of our administration of
the HPA regulations over the past 50 years and our knowledge of the
relationship between pads, wedges, and action devices and the soring of
horses within the Tennessee Walking Horse and racking horse industry.
In a 1979 rulemaking,\28\ APHIS stated that ``if the horse industry
makes no effort to establish a workable self-regulatory program for the
elimination of sore horses, or if such program is established but does
not succeed in eliminating the sore horse within a reasonable length of
time, the Department will give serious consideration to the prohibition
of all action devices and pads.'' (Then, as now, an unacceptable
percentage of horses wearing these devices and pads was found to be
noncompliant with the Act.) Between 1979 and 1982, Auburn University
School of Veterinary Medicine conducted a study (the ``Auburn study'')
that evaluated the effects of chronic and acute inflammatory responses
on the front and hind limbs of horses. That study, which we discuss at
greater length later in this document, 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. Finally, in a 1988 rulemaking \29\ to expand the list of
prohibited devices and equipment on horses, APHIS noted that ``experts
in the horse industry have advised us that elevating the foot can cause
an increase in tension in the tendons, which can lead to inflammation.
A tall pad can also contribute to stresses caused by extra weight on a
horse's foot. Additionally, elevating only the front feet, as is
typically done, 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.''
---------------------------------------------------------------------------
\28\ 44 FR 25172-25184, April 27, 1979.
\29\ 53 FR 14778-14782, April 26, 1988.
---------------------------------------------------------------------------
In other words, by 1979 we had identified a correlation between the
use of action devices and pads and an increased incidence of soring
within the Tennessee Walking Horse and racking horse industry; by 1982,
a peer-reviewed third party had identified that chains can, in
conjunction with other prohibited substances, cause effects consistent
with soring; and by 1988, we had received expert advice that certain
uses of pads and wedges can cause soring. As we mentioned above, the
data cited in tables 1 and 2 of the proposed rule regarding
noncompliance rates within the industry, which covered only a handful
of years, must be viewed in the context of the aggregate body of data
that the Agency has amassed over 50 years of enforcing the HPA. This
includes the above data.
As we noted in the proposed rule, we have attempted many solutions
over the years to address the increased incidence of soring in the
Performance division of the Tennessee Walking Horse and racking horse
industry, a division that relies extensively on the pads, wedges, and
action devices that we proposed to prohibit. Beginning in 2010, APHIS
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 were participating. From 2017 through 2022, APHIS hosted joint
training sessions with HIOs to ensure all DQPs received the same
training.
Nonetheless, these many attempts at nonregulatory solutions have
done little to move us toward the statutory goal of eliminating soring,
and incidents of soring remain statistically elevated in the
Performance division of the Tennessee Walking Horse and racking horse
industry, especially when compared to rates of soring noncompliance
found in inspections of flat-shod Tennessee Walking Horses and racking
horses. In FY 2022, APHIS VMOs found noncompliances in 34.1 percent of
the 930 horses they inspected at Performance division events, compared
to a noncompliance rate of only 1.7 percent of the 357 horses they
inspected at flat-shod events, in which horses compete without wearing
pads and action devices. As we note elsewhere in this rule, horses in
both the Performance and flat-shod divisions are the same breeds,
frequently come from the same bloodlines, and practice the same gaits.
What differentiates these horses is the presence or absence of the tall
pads, wedges, chains, and other action devices used in training and
exhibition, and the exaggerated gait of Performance division horses.
Accordingly, after 44 years of attempts to encourage this division
to address soring without recourse to Federal intervention in the form
of restrictions and prohibitions, we have reached a point at which it
is apparent that the prohibitions articulated in the proposed rule,
along with establishing a corps of third-party inspectors working
independently of the horse industry and free of conflicts of interest,
are a necessary recourse to prevent the soring of horses. This
determination is shared
[[Page 39212]]
by other parties with significant experience in and knowledge of the
equine industry: The changes to the HPA regulations are supported by
the American Veterinary Medical Association, the American Association
of Equine Practitioners, and other major veterinary organizations in
the United States. The outcome will place the Department in a stronger
position to achieve the remedial purpose of the HPA, which is to
prevent and eventually eliminate the abusive practice of soring.
We received many comments that specifically addressed our creation
of a separate list of prohibitions under Sec. 11.6(c) exclusively for
the Tennessee Walking Horse and racking horse breeds.
Numerous commenters stated that APHIS must extend the list of
prohibited actions and items specific to Tennessee Walking and racking
horses in Sec. 11.6(c) to all horse breeds, and Spotted Saddle Horses
in particular. A smaller number of commenters opposed to the proposed
rule stated that, by creating a separate list of prohibitions, APHIS is
unfairly singling out Tennessee Walking Horses and racking horses and
should be inspecting events featuring other breeds equally.
We are making no changes to Sec. 11.6(c) regarding the breeds
covered in that paragraph. Our reasoning for allowing the use of these
items on some breeds, but prohibiting all such items on Tennessee
Walking Horses and racking horses, is as follows. We did not state in
the proposed rule that pads, wedges, action devices, and toe extensions
are always necessarily and per se associated with soring. While they
can cause soring, as we stated in the proposed rule, action devices and
pads are sometimes used for proprioceptive purposes during training of
Morgans, American Saddlebreds, and other gaited breeds.\30\ If the use
of action devices and pads always and per se caused soring, we would
detect soring in those breeds that rely on such devices and pads at a
rate commensurate with the incidence of soring in the Performance
division of the Tennessee Walking Horse and racking horse industry.
However, based on our knowledge of all horse breeds showing or
exhibiting in the United States, soring in breeds other than Tennessee
Walking Horses and racking horses is rare.
---------------------------------------------------------------------------
\30\ Clayton, Hilary, ``Rehabilitation for Horses.'' Paper
presented at American Association of Equine Practitioners, July
2014.
---------------------------------------------------------------------------
We are not contending that soring never occurs in other breeds; for
instance, soring has been known to occur in the Spotted Saddle Horse
community. However, the infrequency of soring in that breed does not
warrant the targeted enforcement that we consider necessary to address
the dramatically higher incidence of soring detected among Tennessee
Walking Horses and racking horses, especially those competing in the
Performance division with tall pads and action devices.\31\
---------------------------------------------------------------------------
\31\ APHIS inspections at Fox Trotter, Spotted Saddle Horse,
Rocky Mountain Horse, and Mountain Horse shows between FY 2017 and
FY 2022 resulted in a noncompliance rate of under 1 percent. The
overall rate of noncompliance at performance shows featuring
Tennessee Walking Horses in pads and action devices in FY 2022 was
34.1 percent.
---------------------------------------------------------------------------
APHIS will continue to enforce the Act and monitor the instances of
soring in breeds and classes other than the Performance division of the
Tennessee Walking Horse and racking industry. However, as we noted in
the proposed rule and again reiterate, 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 Tennessee Walking horses and racking horse
Performance division events, and events for other breeds do not
incentivize soring by placing such a premium on the ``big lick'' step.
A commenter, noting that the proposal states that ``soring in
breeds other than Tennessee Walking Horses and racking horses confers
no significant performance advantage and is therefore rarely if ever
practiced'' stated that this is a blanket assumption that glosses over
the longstanding problems with the current inspection model and ignores
that Spotted Saddle horses have been targeted as well. As support, the
commenter noted that the U.S. Department of Justice successfully
prosecuted Barney Davis, a Spotted Saddle Horse trainer, and two of his
employees for various violations of the HPA after a USDA investigation.
The Act prohibits soring in all breeds of horses, which is why the
U.S. Department of Justice was able to successfully prosecute a soring
violation in a Spotted Saddle Horse. This particular case does not
discount the proposed rule's statements on other breeds, nor does it
invalidate our risk-based inspection method. We use the same inspection
protocol on all breeds of horses covered under the Act. In our more
than 50 years of enforcing the Act, soring has occurred far more
frequently at Tennessee Walking Horse and racking horse shows than at
Spotted Saddle horse shows,\32\ and the exclusion of Spotted Saddle
Horses or any other breed from proposed Sec. 11.6(c) does not preclude
a horse in those breeds at any covered event from being diagnosed as
sore.
---------------------------------------------------------------------------
\32\ See footnote 31.
---------------------------------------------------------------------------
One commenter stated that the final rulemaking should reaffirm that
the HPA applies to all horse show breeds as provided in proposed Sec.
11.6(a) and (b), and that the new restrictions provided in Sec.
11.6(c) specific to Tennessee Walking Horses, racking horses, and
Spotted Saddle Horses are not intended to negate the continuing
obligation of other breeds and shows to comply with the law.
The new regulatory prohibitions on Tennessee Walking Horses and
racking horses do not negate the obligation of other breeds also
covered under the Act to be in compliance with the Act's provisions,
which we monitor through a risk-based inspection protocol. The general
prohibitions in Sec. 11.6(a) apply to all horse breeds. Further, while
we do not include Spotted Saddle Horses under the prohibitions in Sec.
11.6(c), this fact does not preclude APHIS from issuing a violation for
a finding of soring, or a finding of use of a device is prohibited
under Sec. 11.6(a), for a Spotted Saddle Horse or any other breed, or
for a finding that the use of an action device, method, practice, or
substance ``causes or can reasonably be expected to cause such horse to
be sore or is otherwise used to mask previous and/or ongoing soring.''
These horses can be diagnosed as sore--or a device, method, practice,
or substance can be determined to be prohibited under Sec. 11.6(a)--
regardless of breed.
One commenter stated that USDA lacks evidence showing an absence of
soring in other breeds and has itself acknowledged that other breeds do
engage in soring. The commenter added that APHIS has found evidence of
soring during inspections conducted at Spotted Saddle Horse and
Missouri Fox Trotter events.
As addressed above, APHIS focuses its risk-based enforcement
efforts where soring is most concentrated, i.e., on Tennessee Walking
Horse and racking horse shows, particularly Performance division events
in which horses wear the tall pads and action devices and practice the
``big lick.'' Persons exhibiting horses in events in which soring
confers no competitive advantage have no incentive to sore their
horses. Further, APHIS has never denied that soring occurs, albeit
rarely, in breeds other than Tennessee Walking Horses
[[Page 39213]]
and racking horses.\33\ From FY 2017 to FY 2022, APHIS conducted 88
inspections at 6 shows featuring Fox Trotter, Spotted Saddle Horses,
Rocky Mountain Horses, and Mountain Horses and found a rate of
noncompliance under 1 percent, compared to a 34 percent rate of
noncompliance found by APHIS VMOs in inspections of Performance
division Tennessee Walking Horses in FY 2022 alone.\34\
---------------------------------------------------------------------------
\33\ Persons can report suspected cases of soring to
<a href="/cdn-cgi/l/email-protection#c3abacb1b0a6b3b1acb7a6a0b7aaacad83b6b0a7a2eda4acb5"><span class="__cf_email__" data-cfemail="9cf4f3eeeff9eceef3e8f9ffe8f5f3f2dce9eff8fdb2fbf3ea">[email protected]</span></a> for further investigation.
\34\ Proposed rule (88 FR 56930), table 1.
---------------------------------------------------------------------------
Action Devices, Pads, and Wedges (Sec. 11.6(c)(1) and (3))
In the proposal, we invited public comment on the effects upon
horses of action devices and pads, including wedges, whether used alone
or in combination with other training methods. We have chosen to
address comments on action devices and pads under one heading because
many commenters made statements referring to them in combination.
Numerous commenters expressed general support for prohibiting
action devices and pads in order to prevent soring. A smaller number
stated support for prohibiting action devices and pads because they
unfairly allow sored horses to gain a competitive advantage. Several
other commenters stated that action devices and pads, when used in the
ways we have addressed above, are being used to sore horses.
On the other hand, many commenters opposed prohibiting action
devices and pads for Tennessee Walking Horses and racking horses,
stating that pads, chains, and other action devices currently allowed
under the regulations do not cause soring. A few commenters stated that
the action devices, tall pads, and weighted shoes enhance the talent
for the ``big lick'' that these horses already have. Another commenter
stated that equine veterinarians that regularly treat the Tennessee
Walking Horse credit the use of the pads with decreased laminitis but
provided no support to back this claim.
One commenter stated that prohibiting pads and action devices
exceeds USDA's statutory authority because Congress made clear that the
``twin goals'' of the Act are to prohibit soring while simultaneously
protecting and enhancing fair competition. On this point, the commenter
cited as support Thornton v. United Stated Department of
Agriculture,\35\ quoting from it that ``[t]he Horse Protection Act was
adopted to further two public purposes: the altruistic one of
protecting the animals from an unnecessary and cruel practice and the
economic one of eliminating unfair competition from sored pseudo-
champions that could fatally damage the Tennessee walking horse
industry.'' \36\ The commenter posited that the proposed prohibition on
pads and action devices among the Tennessee Walking Horse and racking
horse industry would undermine fair competition by imposing collateral
punishments on members of the industry who do not sore their horses,
and thus was inconsistent with the Act.
---------------------------------------------------------------------------
\35\ Thornton v. U.S. Dep't of Agric., 715 F.2d 1508 (11th Cir.)
1983. This case provides that ``[t]he Horse Protection Act was
adopted to further two public purposes: the altruistic one of
protecting the animals from an unnecessary and cruel practice and
the economic one of eliminating unfair competition from sored
pseudo-champions that could fatally damage the Tennessee walking
horse industry.'' Id. at 1511 (internal citations removed).
\36\ Tennessee Walking Horse Celebration comment, page 27.
---------------------------------------------------------------------------
The purpose of the Act is to prevent soring of horses, which has
benefits for the welfare of horses and for eliminating unfair
competition. The ``Congressional statement of findings'' states 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. Nothing in the regulations--which apply to all Tennessee
Walking horses and racking horses, and which are aimed at addressing a
practice, soring, that Congress found to cause unfair competition--
undermines fair competition.
A commenter stated that it appeared that our rationale for
proposing to ban pads and action devices on Tennessee Walking Horses
and racking horses at regulated events was that, because some
percentage of the owners and/or trainers who show horses in the
Performance division of competition seem to be involved in soring, the
way to address soring was to prohibit action devices and pads for all
Tennessee Walking Horses and racking horses. The commenter stated that
APHIS had misconstrued its authority under the Act to prohibit devices
which, the commenter asserted, was limited to prohibiting only devices
that cause soring. The commenter stated APHIS' proposed prohibitions
were based on the erroneous legal premise that the Secretary has
authority to eliminate any practice, however safe in itself, that seems
to be associated in some loose statistical way with the members in the
industry who engage in other practices that are already separately
prohibited. The commenter stated that this interpretation of the Act
could be used by APHIS to prohibit events entirely, because staging any
horse show could contribute to soring.
The commenter is incorrect that the Act limits prohibitions of
devices to those that cause soring; section 5 (15 U.S.C. 1824(7)) and
section 9 (15 U.S.C. 1828) jointly authorize APHIS to prohibit the use
of devices by regulation if the prohibition is necessary to prevent
soring. To that end, we disagree with the commenter's contention that
there is no more than a loose statistical connection between the use of
pads and action devices within the Tennessee Walking Horses and racking
horse industry and incidences of soring; table 1 of the proposed rule
indicated that noncompliance, primarily due to soring, is 1300 percent
more likely in the Tennessee Walking Horse and racking horse division
that uses pads and action devices than in the Tennessee Walking Horse
and racking horse division that does not.\37\ The commenter's
contention that APHIS' interpretation of the Act would authorize the
wholesale prohibition of all horse shows is likewise in error. There is
no provision of the Act that authorizes the elimination of horse shows
and exhibitions.
---------------------------------------------------------------------------
\37\ See proposed rule (88 FR 56930), table 1, FY 2017 to FY
2022 average noncompliance rate detected by APHIS. Over the 6 years
of data provided, noncompliance rates for Performance division
Tennessee Walking Horses and racking horses averaged 25.1 percent,
whereas noncompliance rates for flat-shod Tennessee Walking Horses
and racking horses during that same period was 1.91 percent.
---------------------------------------------------------------------------
The commenter also stated that because the Act does not prohibit
practices or items that do not cause soring, it does not provide the
USDA authority to prohibit action devices and pads. To the point
regarding authority, we disagree that USDA lacks authority under the
Act to prohibit pads and action devices. Section 5 (15 U.S.C. 1824) of
the Act specifically prohibits, as unlawful, the showing or exhibiting
of a sore horse. Section 2 (15 U.S.C. 1821) of the Act defines ``sore''
to include ``any other substance or device'' that ``has been used by a
person on any limb of a horse . . . and, as a result of such . . . use
. . . such horse suffers, or can reasonably be expected to suffer,
physical pain . . . when walking, trotting, or otherwise moving . . .
except that such term does not include'' use for therapeutic treatment.
Section 9 (15 U.S.C. 1828) of the Act provides USDA with broad
authority to issue regulations as deemed necessary to carry out the
provisions of this chapter. Finally, section 5 (15 U.S.C. 1824(7)) of
the Act authorizes APHIS to prohibit the showing or exhibiting of a
horse which
[[Page 39214]]
is wearing or bearing any equipment, device, paraphernalia, or
substance which the Secretary by regulation under section 9 (15 U.S.C.
1828) prohibits to prevent the soring of horses. The proposed ban on
action devices and pads for Tennessee Walking Horses and racking horses
is therefore within the Agency's statutory authority in several ways.
First, as we stated in the proposed rule and reiterate in this rule,
action devices and pads may, under certain circumstances, and
particularly in conjunction with other substances and practices, cause
soring. It is thus within our statutory authority under section 2 (15
U.S.C.1821) to prohibit their use insofar as they can cause soring.
Second, irrespective of action devices and pads causing soring, there
is a statistically elevated incidence of soring in the Performance
division of the Tennessee Walking Horse and racking horse industry that
is not found in other breeds that compete in pads and action devices,
nor is it found in the flat-shod division of the Tennessee Walking
Horse and racking horse industry, which does not compete in pads and
action devices. The statistically elevated incidence of soring is thus
breed and class-specific. It is also long-standing; again, by 1979,
APHIS was already aware of increased incidence of soring within the
Performance division. Finally, it has not been able to be addressed by
other means, despite many efforts by the Agency to do so. Accordingly,
the prohibitions in this rule are also within our statutory authority
under sections 5 and 9 (15 U.S.C. 1824 and 1828) of the HPA as
necessary to prevent the soring of horses.
The same commenter added that the proposed ban on action devices
and pads is arbitrary and capricious because the use of action devices
and pads does not, per se, cause soring. Similarly, other commenters
stated that pads and action devices have never been shown to cause
soring.
As we note above, we did not state in the proposed rule that pads
and action devices per se cause soring; indeed, we pointed to specific
examples where they are used for purposes that do not result in soring.
What we said, however, is that they can cause soring. In this regard,
we disagree with the latter commenters that pads and action devices do
not cause soring. We have provided support in the proposal and this
final rule indicating that chains and other action devices can inflict
pain and exacerbate soring through repeated strikes to the leg in
training and while the horse performs, particularly if the leg is
already irritated from soring off-site (e.g., if irritating substances
have also been applied to the skin or if the leg is sore from the use
of heavier action devices at the horse's home barn, away from the
show). Indeed, the NAS study notes that horses are often trained with
action devices weighing in excess of the 6[hyphen]ounce action devices
currently allowed for competition; action devices above this weight are
prohibited during shows and exhibitions because they can cause
soring.\38\ We have also provided that pads, when used in certain ways,
can cause a horse's foot to strike the ground at an unnatural angle and
induce tendon problems and soring over time, as can the repeated
lifting of heavy pads and horseshoes.
---------------------------------------------------------------------------
\38\ NAS study, page 81.
---------------------------------------------------------------------------
The same commenter added that if action devices and pads were a
cause of soring then the inspection results would have shown a
violation rate of near 100 percent.
As noted previously, the commenter's stated assumption was that the
Act requires APHIS to establish that a device causes soring in order to
prohibit its use during regulated events. The Act, however, does not
require us to prove that a device always and per se causes soring in
order to prohibit it. Rather, under section 5 (15 U.S.C. 1824(7)) and
section 9 (15 U.S.C. 1828) of the Act, we may prohibit the use of a
device through the issuance of regulations if we determine that the
prohibition is necessary to prevent the soring of horses. Pads and
action devices may be employed in certain ways to cause soring, and the
class of Tennessee Walking Horses and racking horses that use pads and
action devices, the Performance division, is disproportionately likely
to have horses found to be sore following inspection. For these
reasons, we consider it necessary to prohibit the use of pads and
action devices on Tennessee Walking Horses and racking horses in order
to prevent the soring of horses.
As support for pads and action devices not causing soring, one
commenter cited a joint statement by two major veterinary organizations
and a pair of studies that evaluated the effects of pads and action
devices on horses.\39\ In the joint statement by the American
Veterinary Medical Association and the American Association of Equine
Practitioners,\40\ the commenter quoted the statement that ``there is
little scientific evidence to indicate that the use of action devices
below a certain weight are detrimental to the health and welfare of the
horse. . . .''
---------------------------------------------------------------------------
\39\ National Celebration comment, page 22.
\40\ Joint Statement of the Am. Med. Veterinary Assoc. and Am.
Assoc. of Equine Practitioners, 2016 [included in Celebration
comment, incorrectly dated 2012], Exhibit 17 of comment at <a href="https://www.regulations.gov/comment/APHIS-2022-0004-8788">https://www.regulations.gov/comment/APHIS-2022-0004-8788</a>.
---------------------------------------------------------------------------
What the commenter declined to add was that the joint statement
also ``support[s] a ban on the use of action devices and performance
packages in the training and showing of Tennessee Walking Horses.'' The
excerpt quoted by the commenter, in its full context, reads as follows:
``Action devices used in the training and showing of Tennessee
Walking Horses include chains, ankle rings, collars, rollers, and
bracelets of wood or aluminum beads. When used in conjunction with
chemical irritants on the pastern of the horse's foot, the motion of
the action device creates a painful response, resulting in a more
exaggerated gait. While there is little scientific evidence to
indicate that the use of action devices below a certain weight are
detrimental to the health and welfare of the horse, banning action
devices from use in the training and showing of Tennessee Walking
Horses reduces the motivation to apply a chemical irritant to the
pastern.''
We agree with the professional judgment of the American Medical
Veterinary Association and the American Association of Equine
Practitioners, although we note the Act only covers showing, and not
training, activities. If no action devices are allowed on Tennessee
Walking Horses and racking horses during shows and exhibitions, there
is less incentive to sore a horse as there will be no mechanism to
strike the limb to induce the exaggerated show gait through pain.
Further, the joint statement notes that ``[p]erformance packages
(also called stacks or pads) . . . add weight to the horse's foot,
causing it to strike with more force and at an abnormal angle to the
ground. They also facilitate the concealment of items that apply
pressure to the sole of the horse's hoof. Pressure from these hidden
items produces pain in the hoof so that the horse lifts its feet faster
and higher in an exaggerated gait.''
The knowledge and expertise that these two veterinary organizations
have regarding the horse industry and equine veterinary science is not
in question. We concur with the full statement but have more to say
below about the point regarding action devices below a certain weight
being detrimental.
The commenter also cited two other studies \41\ in claiming that
the use of
[[Page 39215]]
action devices and pads does not cause a horse to be sore. We cited one
of these studies (the ``Auburn study'') in the proposal to support the
prohibition of action devices and pads as being necessary to prevent
soring.
---------------------------------------------------------------------------
\41\ 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, prepared by
Dr. Ram C. Purohit, Associate Professor of Veterinary Medicine at
Auburn University, and Soring in Tennessee Walking Horses: Detection
by Thermography, August 1975, prepared by Dr. H.A. Nelson, et al.,
then of APHIS's Veterinary Lab Services, Ames, Iowa.
---------------------------------------------------------------------------
The Auburn study involved exercising horses for 2 to 3 weeks
wearing 2-, 4-, and 6-ounce chains (action devices), 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.'' \42\ The commenter also reported that a USDA study in 1975
similarly found no lesions present on horses wearing chains under 8
ounces in weight.
---------------------------------------------------------------------------
\42\ Auburn Study, Phase XI. Use of 2-, 4- and 6-Ounce Chains.
---------------------------------------------------------------------------
While we acknowledge that the lighter chains in and of themselves
appear in these particular studies to have no harmful effects on
horses, we note that the Auburn study also applied irritating
substances to horses' limbs and exercised them in such chains. Under
these conditions, Dr. Ram C. Purohit, the study's author, reported that
``[t]he combined use of detergent, chains, and mustard oil on the
pasterns of horses causes lesions and tissue damage visible to the
naked eye. They also cause alterations of the horse's behavior that are
predictable.'' \43\
---------------------------------------------------------------------------
\43\ Ibid., Phase VII, Simultaneous Use of Chemicals and Chains
for Soring Horses.
---------------------------------------------------------------------------
While the commenter noted that Dr. Purohit achieved these effects
by exercising horses in 10-ounce chains, they did not address our point
that ``if a horse may be trained sore using 10-ounce chains (or other
weight and/or substance combinations) \44\ and then shown in 6-ounce
chains, the use of the 6-ounce chain may reasonably be expected to
cause the horse to experience pain while walking, trotting, or
otherwise moving.'' \45\ Moreover, another quote from Dr. Purohit
offered by the commenter, in which the doctor stated that his data
``provided no evidence that chains of eight ounces or less used from
three to five weeks in a normal, non-scarred horse produced
inflammation or soreness,'' addresses neither the use of chains with
irritating substances during training nor the effects of wearing chains
of heavier weights for periods appreciably longer than 3 to 5 weeks.
---------------------------------------------------------------------------
\44\ The NAS study indicated that ``[w]alking horses are often
trained with action devices weighing in excess of the 6[hyphen]ounce
action devices currently allowed for competition. The use of heavier
or more cumbersome devices in training may be more likely to
contribute to the formation of the lesions described in this
report'' (page 81).
\45\ 88 FR 56938.
---------------------------------------------------------------------------
We mention this in order to highlight that the manner in which a
horse is trained has a material bearing on whether the use of chains
during shows and exhibitions contributes to soring, and precludes us
from saying that chains of a certain weight cannot be associated with
soring. For example, if an irritant is applied to a horse's limbs
during training and/or the horse has been trained in heavy chains,
performing in chains of 6 ounces or less may cause the horse to suffer
physical pain or distress when moving during the competition, and thus
to meet the statutory definition of being ``sore.'' This is entirely
consistent with the findings of the Auburn study and highlights one of
the limitations of the HPA: APHIS has no authority over training
practices under the HPA; our authority is limited to the horse shows,
exhibitions, sales, and auctions covered by the Act. We are limited to
determining, primarily through inspection, whether horses at such
events are sore. Within these constraints, it is the Agency's finding
that Tennessee Walking Horses and racking horses in the Performance
division are disproportionately likely to be determined to be sore,
regardless of the weight of the chains in which they perform.
The commenter also stated that this rulemaking reverses APHIS'
position on the use of 6-ounce chains, stating that ``not only was the
evidence USDA relies on today in front of it at the time it adopted the
current regulations permitting the use of pads and action devices in
1989, but it relied on that evidence [i.e., the Auburn study] to reach
a conclusion--action devices weighing 6 ounces or less are permissible
because they do not cause soring--that is completely at odds with the
ban the Agency now proposes.'' \46\ The commenter also cited a July 28,
1988 interim rule (53 FR 28366-28373), in which USDA stated that
``while chains and other action devices weighing more than 6 ounces can
sore horses, those weighing 6 ounces or less are not themselves likely
to cause soring'' (page 28370). The commenter concluded that ``USDA may
not change course and ban action devices by relying on a study that
undermines the rationale for a complete ban on action devices and
pads.'' \47\
---------------------------------------------------------------------------
\46\ National Celebration comment, page 23.
\47\ Ibid., page 24.
---------------------------------------------------------------------------
The commenter is incorrect that the Agency changed course without
providing any indication in the proposed rule that its thinking had
evolved regarding the meaning and import of the Auburn study since
1988. The 1988 interim rule assumed that horses would be trained and
shown in chains of equivalent weight, and cited the Auburn study to
establish a de minimis chain weight in compliance with a Court
Order.\48\ The 1988 interim rule cited no data in support of this
assumption regarding training, and this assumption, if ever true, no
longer corresponds to industry practices. To that end, we cited the NAS
study to indicate that use of heavy chains and devices during training
was currently widespread within the Tennessee Walking Horse and racking
horse industry. Given what we now know about training practices, other
aspects of the Auburn study that we assumed to be inoperative in 1988
are in fact germane.
---------------------------------------------------------------------------
\48\ Am. Horse Prot. Ass'n, Inc. v. Lyng, 681 F. Supp. 949, 958
(D.D.C. 1988).
---------------------------------------------------------------------------
We proposed under paragraph (c)(3) to prohibit all pads and wedges
on any Tennessee Walking Horse or racking horse at any show or other
covered event, 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.
A commenter stated that APHIS had acknowledged that pads and action
devices do not cause soring by choosing not to ban their use in other
breeds. The commenter added that the pads used by Tennessee Walking
Horses during training and those used by other breeds were the same,
and cited the USEF rulebook as evidence that Arabian, Anglo-Arabian,
Andalusian, Friesian, Saddlebred, and Morgan horses may all be shown in
pads. The commenter also disagreed with our contention that the gait of
Tennessee Walking Horses in the Performance division is noticeably
different from that of other Performance breeds, and submitted photos
that, the commenter contested, showed a similar accentuated gait in
Friesian, Hackney, American Saddlebred, and other horse breeds.
Again, the commenter's stated assumption is that APHIS has
statutory authority to prohibit a device, such as pads, only if it
causes soring. As we have stated above, section 5 (15 U.S.C. 1824(7))
and section 9 (15 U.S.C. 1828) of the Act authorize APHIS to prohibit
the use of a device by issuing regulations if the prohibition is
necessary to prevent soring.
[[Page 39216]]
Depending on how they are used or designed, pads can cause soring.
However, we are not banning them for Tennessee Walking Horses and
racking horses because they always and per se cause soring, which they
do not. Were we to do so, the commenter would be correct in assuming
the prohibition should be extended to all other padded breeds. Rather,
we are prohibiting the use of pads in Tennessee Walking Horses and
racking horses because the Performance division, in which horses of
these breeds routinely exhibit in pads, has a disproportionately high
incidence of soring relative to other breeds and even to flat-shod
Tennessee Walking Horses and racking horses. As we have stated
previously, the incidence of soring is disproportionately more likely
in Tennessee Walking Horses and racking horses that compete in pads
than other breeds, and noncompliance, particularly in the form of
soring, is even 1,300 percent more likely than other flat-shod classes
of Tennessee Walking Horses and racking horses. This disproportionate
incidence makes it necessary to prohibit the use of pads for Tennessee
Walking Horses and racking horses at regulated events in order to
prevent soring.
A commenter also claimed that our proposed prohibition of pads is
lacking on the same grounds as action devices, claiming that pads also
do not cause soring.
As noted above, we are prohibiting the use of pads in Tennessee
Walking Horses and racking horses because the only Tennessee Walking
Horse and racking horse class that routinely exhibits in pads has a
disproportionately high incidence of soring, relative to other breeds
and even to flat-shod Tennessee Walking Horses and racking horses.
Further, we noted above that the uniquely tall stacks of pads and
wedges worn in exhibition by Performance division Tennessee Walking
Horses and racking horses, when employed in certain ways, can cause a
horse to become sore, a point with which the American Veterinary
Medical Association and American Association of Equine Practitioners
concur.
The commenter further reasoned that ``if raising a horse's heel
through pads could cause soring by itself, then USDA would necessarily
need to ban the use of pads in all HPA Breeds.'' \49\
---------------------------------------------------------------------------
\49\ National Celebration comment, page 24.
---------------------------------------------------------------------------
Again, we never contended that pads always and per se cause soring;
indeed, we specifically pointed to instances in other breeds where
horses are able to use pads (and action devices) without either item
causing soring, and where instances of soring in those breeds are rare.
However, we did indicate that pads can cause soring, either on their
own or in conjunction with other substances and practices.
Additionally, there is a statistically elevated incidence of soring
among horses in the Performance division of the Tennessee Walking Horse
and racking horse industry in comparison to other breeds that use pads
during competition.
The commenter further contended that ``of course the pads used by
these other breeds during training are no different from those used by
Tennessee Walking Horses.'' This contention is in error and does not
acknowledge the obvious difference between the tall stacks of pads and
wedges used to train and show Performance division Tennessee Walking
Horses and the much thinner protective pads used by most other breeds.
The same commenter cited an affidavit by USDA's former Chief Staff
Veterinarian for Horse Protection matters from 1973 to 1978, Dr. Lois
Hinson, who testified that clinics that USDA conducted definitively
prove that pads per se do not cause inflammation or soring in the
hooves of horses, but rather extreme angulation of the hoof causes
inflammation and soring. The commenter indicated that these studies are
the only ones the commenter is aware of that evaluated whether pads
cause soring on Tennessee Walking Horses and racking horses.
As we noted previously, one of the commenter's stated assumptions
was that APHIS could only ban pads if the pads always and per se cause
soring. As previously articulated, we are prohibiting pads on Tennessee
Walking Horses and racking horses not because they always and per se
cause soring, but because they can cause soring. Soring is so
disproportionately likely in Tennessee Walking Horses and racking
horses wearing pads that the prohibition is necessary in order to
prevent soring. This is consistent with our authority under section 5
(15 U.S.C. 1824(7)) and section 9 (15 U.S.C. 1828) of the Act.
Accordingly, the studies and affidavit of Dr. Hinson are not relevant
to our proposed prohibition.
The commenter also stated that USDA lacks evidence showing an
absence of soring in other breeds and has itself acknowledged that
other breeds do engage in soring.
We note that USDA has never stated that other breeds do not sore
their horses. What we have stated in the proposal and in this final
rule is that breeds other than Tennessee Walking Horses and racking
horses have not been found to sore horses with any frequency, as soring
confers no competitive advantage to horses that do not perform the
exaggerated ``big lick'' step in Performance division shows.
Further, the same commenter stated that USDA has not provided
evidence that violations such as pressure shoeing are otherwise
impossible to detect beneath pads, or that such violations occur with
such frequency that a ban on pads is warranted. The commenter added
that pressure shoeing can be detected currently through radiography and
other means.
The Auburn study found that the ability to detect pressure soring
(the illegal application and/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.\50\ APHIS agrees with this
finding. Moreover, because evidence of pressure soring can be removed
prior to inspection, the evidence of soring would not necessarily
appear on radiographs as the commenter contends.
---------------------------------------------------------------------------
\50\ Auburn study, Phase xvi.
---------------------------------------------------------------------------
One commenter recommended that we include in Sec. 11.6(c) a
clarification that explicitly allows applications of nails to limbs
(feet) to secure horseshoes.
We acknowledge the commenter's point but do not find it necessary
to add such a clarification, as nails are usually necessary to secure
the shoe to the hoof.
Two commenters opposed to the prohibition on action devices and
pads cited a 2017 study \51\ that found no evidence of change in
biological markers associated with stress and pain with stacked pads
and action devices.
---------------------------------------------------------------------------
\51\ Everett JB, Schumacher J, Doherty TJ, et al. Effects of
stacked wedge pads and chains applied to the forefeet of Tennessee
Walking Horses for a five-day period on behavioral and biochemical
indicators of pain, stress, and inflammation. American Journal of
Veterinary Research 2018; 79:21-32: <a href="https://doi.org/10.2460/ajvr.79.1.21">https://doi.org/10.2460/ajvr.79.1.21</a>.
---------------------------------------------------------------------------
APHIS is aware of the study cited by the commenters as well as the
limitations of the study that the authors themselves pointed out,
including that the horses were never exercised at a running walk, there
were no riders on the horses when exercised, and the evaluation period
of when the horses were outfitted with stacked wedge pads and chains
was only 5 days. Accordingly, the authors of the study themselves
acknowledged that ``these findings should not be extrapolated to the
long-term use of such devices.'' \52\ While the chains used on the
horses in
[[Page 39217]]
this study were 6-ounce chains, Tennessee Walking Horses can be trained
with chains much heavier than what the regulations allow,\53\ along
with the use of prohibited substances on the pasterns of these horses
in training to make them more reactive to action devices during shows.
---------------------------------------------------------------------------
\52\ Letters to the Editor. American Journal of Veterinary
Research 2018; 79:248-249: <a href="https://doi.org/10.2460/ajvr.79.3.248">https://doi.org/10.2460/ajvr.79.3.248</a>
\53\ Equine experts on the NAS Committee also raise this point
in their study (page 81).
---------------------------------------------------------------------------
Several commenters stated that banning pads and action devices on
Tennessee Walking Horses and racking horses constitutes a violation of
their rights under the U.S. Constitution. Specifically, one commenter
stated that the Takings Clause of the Fifth Amendment of the U.S.
Constitution provides that when the Federal Government takes private
property for a public use, it must provide just compensation. The
commenter expressed concern that if USDA proceeds with the ban on pads
and action devices, its actions will amount to a taking because it
would destroy all the value in Tennessee Walking Horses trained to
compete in the performance division by essentially banning the sport in
which they compete.
To support this point, the commenter provided statements from
several trainers \54\ supporting why the value of such horses would
diminish. Some trainers cited the time and cost required to retrain a
horse to compete flat-shod (without pads), while others stated, without
explanation, that very few horses trained to compete in the Performance
division are able to make the transition to competing flat-shod.
Underscoring this latter point, the commenter added that ``[I]t would
be like asking a professional athlete to drop one sport and train for
another.'' Similarly, another commenter opined that Performance
division Tennessee Walking Horses have been specifically bred and
trained to compete with action devices and pads and cannot simply be
retrained to compete as a flat-shod horse.
---------------------------------------------------------------------------
\54\ National Celebration comment, page 32.
---------------------------------------------------------------------------
We disagree with the commenter that the regulations would result in
the loss of all economically valuable use of Tennessee Walking Horses
competing in the Performance division. The statements from trainers
provided by the commenter that cite the time and cost required to
retrain such a horse actually underscore that retraining is possible.
If the regulations deprived the horse of all economic value regardless
of its use, retraining would be either impossible or materially
irrelevant. Indeed, based on the statements provided, there is no basis
to conclude that the value of Tennessee Walking Horses competing in the
Performance division--that is, trained to perform in stacked pads and
action devices--would necessarily be reduced if they cannot compete
wearing these items. It is, of course, possible that this could occur
and that the prohibitions in the rule will render some horses less
valuable. However, to the extent that this foregone value was derived
from an illicit and illegal activity, soring, that was being pursued in
order to gain a competitive advantage, this reduction in value is
foreseen by the Act and consistent with it. And again, a reduction in
value, particularly illicitly derived value, is not tantamount to loss
of all economically valuable use; even if there were some basis to
conclude that the regulations would result in some limited reduction in
value, that is not sufficient to show the loss of all economically
valuable use.
First, while the commenter implies that horses competing flat-shod
and in stacked pads are engaging in two dramatically different
activities, a prominent Tennessee Walking Horse industry organization
\55\ notes that they both actually employ the same basic gaits--the
flat-foot walk, the running walk, and the canter. These are described
by the organization as ``natural, inherited gaits,'' \56\ with the only
difference between flat-shod and Performance gaits being that the
latter is practiced with ``more animation and accentuated brilliance.''
\57\ We cite this organization's statement to show that the industry
itself notes that the same gaits, described as being natural and
inherent to the breed, are used by horses competing with and without
stacked pads and actions devices, the main difference between the two
being the degree of animation.
---------------------------------------------------------------------------
\55\ Tennessee Walking Horse Breeders' and Exhibitors'
Association website: <a href="https://twhbea.com/the-breed/disciplines/">https://twhbea.com/the-breed/disciplines/</a>.
Accessed January 5, 2024.
\56\ Ibid.
\57\ Ibid.
---------------------------------------------------------------------------
Second, despite the claim that such horses cannot be retrained to
show without pads, commenters did not explain specifically why such
horses cannot practice an inherited gait on their natural hooves,
rather than on unnaturally tall pads. Further, trainers and other
commenters responding to this rulemaking have stated that flat-shod
horses can achieve the animated ``big lick'' step with proper training.
If the only elements missing from a show are pads and action devices,
we question why their absence alone will affect the value of a horse in
terms of its ability to show. Nowhere do commenters explain how these
items work in any benign way to animate what they otherwise claim to be
the natural and inherited ability of such horses to practice the ``big
lick'' step.
One commenter opined that Performance division Tennessee Walking
Horses have been specifically bred and trained to compete with action
devices and pads and cannot simply be retrained to compete as a flat-
shod horse, although this and other commenters provided no specific
evidence that Performance division horses trained to perform with the
use of pads and action devices cannot perform well without them. We
note that other breeds of horses can transition successfully from one
sport to another. Racehorses are successfully retrained to practice
dressage and jumping, and other breeds have switched easily from
English- to Western-style riding, and the industry itself indicates
that the horses can easily be retrained to different purposes.\58\
While commenter concern over how this rulemaking may affect a horse's
value is understandable, we note that this rulemaking makes no changes
to the ability of horses to freely compete in shows and exhibitions.
Further, the evidence that the commenter provided, as well as evidence
we obtained from some commenters and the industry website discussed
above, suggests they can be retrained.
---------------------------------------------------------------------------
\58\ Ibid.
---------------------------------------------------------------------------
Numerous commenters opined that the prohibition on action devices
and pads would diminish public interest in shows and result in the
cultural and economic decline of the Tennessee Walking Horse industry.
Some stated that Performance division horses that use pads and action
devices are essential to horse shows and, without such classes, owners
and spectators would lose interest in the shows.
The commenters ignore the fact that flat-shod classes compete
widely within the Tennessee Walking Horse industry and are of growing
popularity. This fact suggests that the use of pads and action devices
are not essential to the survival of shows featuring such breeds.
Without pads and action devices, the same shows could be held under the
same management, and, if trained to go flat-shod, which, again, we have
reason to believe is possible, the same horses could continue to
compete in them with the same custodians and trainers. To that end, we
again note that the industry itself indicates that Tennessee Walking
Horses can be easily retrained to different purposes, and that the
basic gait for padded and flat-shod Tennessee
[[Page 39218]]
Walking Horses is the same. This comports with evidence provided by
veterinary organizations with expertise in equine medicine and humane
animal care, which we discuss immediately below, and which suggests
that Tennessee Walking Horses can be retrained to go flat-shod in far
less time than we proposed to afford for the transition.
Interest in flat-shod shows is growing nationwide. In a 2015
article,\59\ the president of a prominent Tennessee Walking Horse
owners' association noted that entries for its sanctioned, flat-shod
shows across the country almost doubled from 2012 to 2014, adding that
the number of such shows has also increased. The economic analysis
accompanying this final rule provides an evaluation of its economic
impact on the affected segments of the horse industry.
---------------------------------------------------------------------------
\59\ Meyer, Holly. ``Walking horse group successful with flat-
shod rules.'' The Tennessean, July 18, 2015.
---------------------------------------------------------------------------
Some commenters stated that USDA has failed to conduct a proper
cost-benefit analysis for the proposed ban on action devices and pads.
We address the topic of economic impacts in the economic analysis
prepared for this final rule.
We proposed to have the prohibition on pads and wedges, and
artificial toe extensions, on Tennessee Walking Horses and racking
horses to become effective 270 days after promulgation of a final rule.
In the proposal, we also invited comments on whether this is an
appropriate timeframe for transitioning to a prohibition on pads and
wedges, and artificial toe extensions.
Many commenters stated that the USDA should reevaluate its proposal
to delay the ban on hoof pads for Tennessee Walking Horses and racking
horses for 270 days after finalizing the regulations. They noted that
the proposed rule states that pads can induce pain by ``caus[ing] a
horse's foot to strike the ground at an unnatural angle.'' One
commenter added that Tennessee Walking Horses ``sometimes have their
pads/wedges removed at the conclusion of show season with no negative
ramifications to the horse. The transition from pads to flat-shod can
be and sometimes is accomplished in a day, as long as the hoof is
trimmed to maintain the same proportions.'' One commenter stated that
no scientific evidence was provided to support the claim that
transitioning the horse from padded to flat-shod requires a set period
of time. Some commenters additionally asked that artificial toe
extensions not have the 270-day phaseout period. Another commenter
asked if owners are allowed to exhibit with these devices and pads up
and until the end of the 270-day period and deemed a 90-day period
sufficient, adding that those affected and covered under this
regulation have had sufficient time to plan and institute training
without the use of these devices.
In the proposed rule, we had stated that it takes approximately 6
to 8 months for a padded horse to become acclimated to walking and
performing without pads. However, we reviewed the evidence provided by
veterinary organizations with expertise in equine medicine and humane
animal care that stated a grace period was not necessary for
acclimation to walking without pads. We reconsidered the 270-day
requirement and the evidence on which we based it, as well as
statements from several commenters that a 270-day phaseout period for
pads and toe extensions could unduly extend the time that horses are
suffering from soring as a result of continued use of these items.
Accordingly, we are establishing February 1, 2025, as the date on which
pads and toe extensions can no longer be used on Tennessee Walking
Horses and racking horses. This change reduces the amount of time that
horses are made to wear these items.
A commenter stated that if therapeutic treatment using a pad or
wedge is allowed, there is potential for pressure shoeing. The
commenter recommended that ``pressure shoeing'' be defined clearly in
Sec. 11.1 to prevent uncertainty or ambiguity.
We agree with the commenter that a potential for pressure shoeing
exists whenever pads and wedges are used, which is a reason we are
prohibiting such items to prevent soring. However, the practice can be
applied in many ways and to define the term ``pressure shoeing'' in one
prescriptive way may limit APHIS' options for citing it as a violation.
As we go forward with these regulatory changes, we will evaluate the
potential for this practice in conjunction with the use of therapeutic
pads and wedges.
Some commenters stated that pads are sometimes used as a way to
alleviate pain and prevent damage to hoof structures and related
connective tissue in all breeds of horses.
Pads with legitimate therapeutic applications may be used on
Tennessee Walking Horses and racking horses in accordance with the
veterinary prescription requirements in Sec. 11.14(b).
A commenter suggested that we include limits on dimensions of
therapeutic pads and wedges, adding that a veterinarian may be
persuaded by owners and trainers to prescribe such items that are
identical to those currently used in performance packages.
We do not consider it necessary to include such specific dimensions
within the regulations. As management is required to maintain all
records of therapeutic treatment, including prescription information,
APHIS can evaluate and determine the suitability of any such
prescription for pads and wedges as warranted. If APHIS disputes a
therapeutic treatment at a show on veterinary grounds, the horse will
not be allowed to show.\60\ If APHIS disputes such a therapeutic
treatment in the records required to be maintained, we reserve the
right to contact the appropriate State veterinary board regarding the
veterinarian prescribing that treatment.
---------------------------------------------------------------------------
\60\ Persons wishing to appeal a disqualification based on a
therapeutic treatment can do so in accordance with 9 CFR 11.5.
---------------------------------------------------------------------------
Several commenters opposed to the proposed rule stated that the
existence of 15-year-old and older Tennessee Walking Horses and racking
horses still showing in pads is evidence that soring is neither a
common nor serious problem.
We incorporate our earlier rationale for the prohibition and note
that the presence of older horses wearing pads in shows is neither
evidence that pads are harmless nor that horses performing a
[…truncated; see source link]Indexed from Federal Register on May 8, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.