# Horse Protection

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-17814

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** August 21, 2023
- **Citation:** 88 FR 56924

## Text

DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 11
[Docket No. APHIS-2022-0004]
RIN 0579-AE70
Horse Protection

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Proposed rule.

SUMMARY:

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

DATES:

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

ADDRESSES:

You may submit comments by either of the following methods:

•
Federal eRulemaking Portal:
Go to
www.regulations.gov.
Enter APHIS-2022-0004 in the Search field. Select the Documents tab, then select the Comment button in the list of documents.

•
Postal Mail/Commercial Delivery:
Send your comment to Docket No. APHIS-2022-0004, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238.

Supporting documents and any comments we receive on this docket may be viewed at
www.regulations.gov
or in our reading room, which is located in Room 1620 of the USDA South Building, 14th Street and Independence Avenue SW, Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

FOR FURTHER INFORMATION CONTACT:

Dr. Aaron Rhyner, DVM, Assistant Director, USDA-APHIS-Animal Care, 2150 Centre Ave., Building B, Mailstop 3W11, Fort Collins, CO 80526-8117;
horseprotection@usda.gov;
(970) 494-7484.

SUPPLEMENTARY INFORMATION:

Under the Horse Protection Act (HPA, or the Act, 15 U.S.C. 1821
et seq.
), the Secretary of Agriculture is authorized to promulgate regulations to prohibit the movement, showing, exhibition, or sale of sore horses.

The Secretary has delegated responsibility for administering the Act to the Administrator of the U.S. Department of Agriculture's (USDA) Animal and Plant Health Inspection Service (APHIS). Within APHIS, the responsibility for administering the Act has been delegated to the Deputy Administrator for Animal Care. Regulations and standards established under the Act are contained in 9 CFR part 11 (referred to below as the regulations), and 9 CFR part 12 lists the rules of practice governing administrative proceedings.

Section 2 of the Act, “Definitions” (15 U.S.C. 1821(3)), defines a “sore” horse as follows:

“The term `sore' when used to describe a horse means that:

(A) An irritating or blistering agent has been applied, internally or externally, by a person to any limb of a horse,

(B) Any burn, cut, or laceration has been inflicted by a person on any limb of a horse,

(C) Any tack, nail, screw, or chemical agent has been injected by a person into or used by a person on any limb of a horse, or

(D) Any other substance or device has been used by a person on any limb of a horse or a person has engaged in a practice involving a horse, and, as a result of such application, infliction, injection, use, or practice, such horse suffers, or can reasonably be expected to suffer, physical pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving. . . .”

Soring has been used primarily in the training of Tennessee Walking Horses and racking horses
1

to produce an exaggerated gait in competition. However, the HPA's prohibition against sored horses participating in shows, exhibitions, sales, and auctions applies to all horse breeds.
2

In addition to declaring that the soring of horses is cruel and inhumane, Congress further found that the movement, showing, exhibition, or sale of sore horses in intrastate commerce adversely affects and burdens interstate and foreign commerce and creates unfair competition.

1
The racking horse is a breed derived from the Tennessee Walking Horse. It has a smooth, natural gait known as the “rack,” a four-beat gait with only one foot striking the ground at a time.

2
APHIS monitors the activities of other breeds and investigates credible evidence of soring as warranted.

Background of HPA Regulations

Under the HPA, it is unlawful for any person to show, exhibit, sell, or transport sore horses, or to use any prohibited equipment, device, paraphernalia, or substance in horse shows, exhibitions, sales, or auctions. The HPA holds horse owners responsible should they allow any such unlawful activities to occur, and requires management of horse shows, exhibitions, sales, and auctions (referred to as “management” or “event management,” below) to ensure that sore horses do not compete or otherwise participate in these events.

After Congress passed the HPA in 1970, APHIS established regulations to enforce the Act, including restrictions on the use of certain equipment, devices, and substances. In accordance with the Act, the regulations also include inspection provisions for detecting soring in horses at shows, exhibitions, sales, and auctions. In 1976, Congress amended the Act
3

to allow (but not require) the management of any horse show, exhibition, or sale or auction to appoint persons qualified to inspect horses for soreness. Section 4 of the Act (15 U.S.C 1823(c)) requires the Secretary of Agriculture to prescribe by regulation requirements for any appointment by the management of a horse show, exhibition, sale, or auction of persons qualified to detect and diagnose a horse which is sore or to otherwise inspect horses for the purpose of enforcing the Act. Although the Act does not require that management appoint a qualified person to inspect horses, if management chooses not to do so it can be held liable for violating the Act if it fails to disqualify a sore horse from participating in an event. If, alternatively, event management appoints a qualified person to conduct inspections, management may be held liable only for failing to disqualify a sore horse after being notified by the qualified person or by the Secretary of Agriculture, or his or her designee, that a horse is sore.

3
Public Law 94-360, 3, July 13, 1976, 90 Stat. 915;
https://www.govinfo.gov/content/pkg/STATUTE-90/pdf/STATUTE-90-Pg915.pdf.

Responding to Congress' 1976 amendment to the Act, APHIS revised the regulations (44 FR 1558-1566, January 5, 1979) to include qualifications for “Designated Qualified Persons,” or DQPs, to serve as third-party inspectors employed and compensated by the industry, as well as provisions for certifying industry-run

programs to train and license them. These programs are currently administered by Horse Industry Organizations, or HIOs.

HIOs currently fill several roles, both unregulated and regulated, for horse shows, exhibitions, sales, and auctions. For example, event management may retain an HIO to assist with activities not regulated under the Act, such as registering participants and coordinating event logistics, supplying show judges, and promoting events. Regulated HIO activities, in addition to training and licensing DQPs, include assessing and enforcing minimum penalties for certain violations of the regulations, conducting hearings for appeals of violations, and reporting disciplinary actions against exhibitors, event management, and DQPs to APHIS. Under the current regulatory regime, an HIO seeking certification to train and license DQPs is required to submit to APHIS a formal request in writing for certification of its DQP program and a detailed outline of the program, in accordance with paragraph (b) of § 11.7 of the regulations.
4

4
Details of the current HIO certification process are available in an APHIS-Animal Care Tech Note located at
https://www.aphis.usda.gov/animal_welfare/hp/downloads/tech-note-certification-requirements-dqp-programs-web-layout.pdf.

Under the current Horse Protection program, DQPs are the primary party responsible for inspecting and diagnosing soreness in horses. A DQP is a qualified person who, under the provisions of 15 U.S.C. 1823(c) cited above, may be appointed by management of a horse show or sale to detect horses that are sored, and to otherwise conduct inspections for the purpose of enforcing the Act. DQPs may be reimbursed for services directly by event management or by an HIO which has contracted with them to provide inspections for events. DQPs must have equine experience and meet professional qualifications as set forth in § 11.7(a).

DQP candidates must successfully complete a formal training program developed and delivered by the HIO before they can be licensed, except that veterinarians already accredited by USDA may be licensed as DQPs without having to participate in formal training. Such veterinarians must also be a member of the American Association of Equine Practitioners, or large animal practitioners with substantial equine experience, or knowledgeable of equine lameness as related to soring and soring practices. Section 11.7(a)(1)(iii) states that veterinarians having such knowledge might include those with a small animal practice who own, train, judge, or show horses, or be Doctors of Veterinary Medicine who teach equine related subjects in an accredited college or school of veterinary medicine.

Alternatively, DQPs may be farriers, horse trainers, and other knowledgeable individuals whose past experience and training would qualify them for positions as HIO stewards or judges (or their equivalent), provided that they are trained and licensed by an HIO or association whose DQP program has been certified by APHIS. Of the 59 persons licensed as DQPs in fiscal year 2022, only one is a veterinarian.

APHIS Veterinary Medical Officers (VMOs) may attend HPA-covered events unannounced to oversee and conduct inspections and to otherwise determine compliance with the Act. To ensure that horses are disqualified when soreness is detected or when other violations are found, APHIS also reviews reports by event management, HIOs, and DQPs, and conducts audits of records maintained by certified DQP programs.

APHIS has several options for resolving a case in which the evidence substantiates that an alleged violation has occurred. These include issuing official warnings to those involved in the alleged violation, offering to resolve the case through a stipulated penalty, and referring the case to the USDA Office of the General Counsel for formal administrative action before the USDA Office of Administrative Law Judges or referral to the U.S. Department of Justice.

Summary of Current Regulations

The current structure of the Horse Protection regulations in 9 CFR parts 11 and 12 is summarized below.

Section 11.1, “Definitions,” lists the definitions for terms used throughout part 11.

Section 11.2, “Prohibitions concerning exhibitors,” lists general and specific prohibitions for any device, method, practice, or substance used on any horse at any horse show, exhibition, or horse sale or auction if such use causes or can reasonably be expected to cause such horse to be sore.

In § 11.2(a), the general prohibitions state that “no chain, boot, roller, collar, action device, nor any other device, method, practice, or substance shall be used with respect to any horse at any horse show, horse exhibition, or horse sale or auction if such use causes or can reasonably be expected to cause such horse to be sore.” Prohibitions regarding devices, equipment, or practices on any horse at any horse show, exhibition, or horse sale or auction are listed in paragraph (b) of § 11.2. (We discuss the specific prohibitions under “Prohibitions Concerning Exhibitors” below.)

Paragraph (c) prohibits all substances on the extremities above the hoof of any Tennessee Walking Horse or racking horse while being shown, exhibited, or offered for sale at any horse show, exhibition, or horse sale or auction, except lubricants such as glycerin, petrolatum, and mineral oil, or mixtures. Lubricants can only be applied after the horse has been inspected by management or by a DQP, and lubricants that will be applied must be made available to APHIS personnel for inspection and sampling as deemed necessary.

Paragraph (d) provides specific requirements for rest periods during horse show and horse exhibition workouts or performances for 2-year-old Tennessee Walking Horses and racking horses, and working exhibitions for 2-year-old Tennessee Walking Horses and racking horses at sales or auctions.

In paragraph (e) of § 11.2, failure to provide information or providing any false or misleading information required by the Act or regulations or requested by Department representatives, by any person that owns, trains, shows, exhibits, or sells or has custody of, or direction or control over any horse shown, exhibited, sold, or auctioned or entered for the purpose of being shown, exhibited, sold, or auctioned at any horse show, exhibition, or horse sale or auction, is prohibited.

Under § 11.3, “Scar rule,”
5

horses that do not meet the scar rule criteria are considered to be sore and are subject to all prohibitions of the Act. Paragraph (a) of § 11.3 states the “anterior and anterior-lateral surfaces of the fore pasterns (extensor surface)” are required to “be free of bilateral granulomas,
6

other bilateral pathological evidence of inflammation, and, other bilateral evidence of abuse indicative of soring including, but not limited to, excessive loss of hair.”

5
The term “scar rule” refers generally to the presence of visible lesions or other abnormalities on the horse's pasterns suggesting that a horse has been subjected to soring. We discuss the scar rule in detail in a later section titled “Dermatologic Changes and the Scar Rule.”

6
“Granuloma” is defined in the regulation as any one of a rather large group of fairly distinctive focal lesions that are formed as a result of inflammatory reactions caused by biological, chemical, or physical agents. This regulatory definition covers a considerably wider range of lesions than does the medical definition of
granuloma.
We elaborate on this distinction in “Dermatologic Changes and the Scar Rule.”

Paragraph (b) of § 11.3 states the “posterior surfaces of the pasterns (flexor surface), including the sulcus or “pocket” may show bilateral areas of

uniformly thickened epithelial tissue if such areas are free of proliferating granuloma tissue, irritation, moisture, edema, or other evidence of inflammation.”

Section 11.4, “Inspection and detention of horses,” includes requirements regarding inspection of horses by APHIS representatives, as well as detention of horses for inspection if an APHIS representative has probable cause to believe that a horse is sore. This section also includes provisions for maintaining the well-being of a horse in detention and for informing the owner, trainer, exhibitor, or other person having immediate custody of or responsibility for any horse allegedly found to be in violation of the Act or the regulations of such alleged violation before the horse is released from detention. Provisions for requesting reexamination and testing of detained horses are also included in this section.

Under § 11.5, “Access to premises and records,” paragraph (a) provides that the management of any horse show, exhibition, or horse sale or auction “shall, without fee, charge, assessment, or other compensation, provide APHIS representatives with unlimited access to the grandstands, sale ring, barns, stables, grounds, offices, and all other areas of any horse show, horse exhibition, or horse sale or auction, including any adjacent areas under their direction, control, or supervision for the purpose of inspecting any horses, or any records required to be kept by regulation or otherwise maintained.” Management must also provide an adequate, safe, and accessible area for the visual inspection and observation of horses while such horses are competitively or otherwise performing at any horse show or horse exhibition, or while such horses are being sold or auctioned or offered for sale or auction at any horse sale or horse auction.

Paragraph (b) of § 11.5 requires that “[e]ach horse owner, exhibitor, or other person having custody of or responsibility for any horse at any horse show, horse exhibition, or horse sale or auction shall, without fee, charge, assessment, or other compensation, admit any APHIS representative or Designated Qualified Person appointed by management, to all areas of barns, compounds, horse vans, horse trailers, stables, stalls, paddocks, or other show, exhibition, or sale or auction grounds or related areas at any horse show, horse exhibition, or horse sale or auction, for the purpose of inspecting any such horse at any and all reasonable times.” Such persons must also promptly present his or her horse for inspection upon notification by any APHIS representative or DQP appointed by management for the purpose of determining whether such horse is in compliance with the Act and regulations.

Section 11.6, “Inspection space and facility requirements,” requires the management of every horse show, exhibition, or horse sale or auction containing Tennessee Walking Horses or racking horses to provide, without fee, sufficient space and facilities for APHIS representatives to carry out their duties under the Act and regulations, whether or not management has received prior notification by APHIS. The management of every horse show, exhibition, horse sale or auction which does not contain Tennessee Walking Horses or racking horses must provide, without fee, sufficient space and facilities when requested to do so by APHIS representatives. Space and facility requirements include sufficient space for inspecting horses, protection from the elements, a means to control crowds and onlookers, an accessible, reliable, and convenient 110-volt electrical power source, if electrical service is available at the site and is requested by the APHIS representative, and appropriate inspection waiting and detention areas.

Paragraph (a) of § 11.7, “Certification and licensing of designated qualified persons (DQP's)” currently lists basic professional qualifications required of DQP applicants and paragraph (b) lists certification requirements for DQP programs certified by APHIS and initiated and maintained by HIOs or associations.
7

As part of maintaining a DQP program that APHIS has certified, HIOs are responsible for delivering the training curriculum as well as ensuring that criteria for selecting and licensing DQPs are met. HIOs must also submit records to APHIS containing details of horse shows, exhibitions, sales, and auctions at which DQPs appointed by them inspect horses.

7
“Association” refers to HIOs using that term to describe themselves.

Paragraph (c) contains DQP licensing requirements in HIOs or associations receiving Department certification for the training and licensing of DQPs, and paragraph (d) of § 11.7 lists recordkeeping and other requirements to be met by HIOs or associations and DQPs.

Paragraph (e) of § 11.7 prohibits the management of any horse show, exhibition, horse sale, or horse auction from appointing any person to detect and diagnose horses which are sore or to otherwise inspect horses for the purpose of enforcing the Act if such person does not hold a valid DQP license, if the license is canceled, or if the person has been disqualified by the Secretary from performing diagnosis, detection, and inspection under the Act, after notice and opportunity for a hearing.

Paragraph (f) contains provisions for canceling a DQP license. Concluding this section, paragraph (g) provides the process for revoking the DQP program certification of an HIO or association.

Section 11.20 of the current regulations lists the responsibilities and liabilities of the management of any horse show, exhibition, or horse sale or auction which does not appoint a DQP to inspect horses, noting that in such cases event management is responsible and legally liable for identifying all horses that are sore or otherwise in violation of the Act or regulations and must disqualify or disallow any such horses from participating or competing in any horse show, exhibition, horse sale, or horse auction. If management does appoint a DQP to inspect horses, the section provides that management must not take any action which would interfere with or influence a DQP in carrying out his or her duties or making decisions concerning whether or not any horse is sore or otherwise in violation of the Act or regulations.

Section 11.20 also includes responsibilities for the management of any horse show, exhibition, horse sale or auction which designates and appoints one or more DQPs to inspect horses. Management in such cases must accord the DQP access to all records and areas of the grounds of such show, exhibition, sale, or auction and the same right to inspect horses and records as is accorded to any APHIS representative.

Section 11.21 lists inspection procedures that DQPs must follow, including requirements for walking and turning the horse in a manner that allows the DQP to determine whether the horse exhibits signs of soreness. This section also includes the procedure for proper palpation to detect soreness, as well as procedures for conducting horses through other elements of the inspection process.

Under § 11.22, “Records required and disposition thereof,” the management of any horse show, exhibition, or horse sale or auction, that contains Tennessee Walking Horses or racking horses is required to maintain for at least 90 days following the closing date of the show, exhibition, or sale or auction, all pertinent records. If specifically required by APHIS, management may be required to hold the records specified longer than 90 days.

Under paragraph (a) of § 11.23, “Inspection of records,” the management of any horse show, exhibition, or horse sale or auction must allow any APHIS representative, upon request, to examine and make copies of any and all records pertaining to any horse. Similarly, paragraph (b) requires that HIOs or associations that train, maintain, and license inspectors under a certified DQP program must permit any APHIS representative, upon request, to examine and copy any and all records relating to the DQP program which are required by any part of the regulations.

In § 11.24, “Reporting by management,” paragraph (a) states that within 5 days following the conclusion of any horse show, exhibition, or horse sale or auction, containing Tennessee Walking Horses or racking horses, management must submit to the Regional Director for the State in which the show, exhibition, sale or auction was held, information required in paragraphs (a)(1) through (a)(6) of § 11.22 for each horse excused or disqualified by management or its representatives from being shown, exhibited, sold or auctioned, and the reasons for such action.

In paragraph (b) of § 11.24, within 5 days following the conclusion of any horse show, exhibition, or horse sale or auction which does not contain Tennessee Walking Horses or racking horses, the management must inform the Regional Director for the State in which the show, exhibition, sale or auction was held, of any case where a horse was excused or disqualified by management or its representatives from being shown, exhibited, sold or auctioned because it was found to be sore.

Section 11.25, “Minimum penalties to be assessed and enforced by HIOs that license DQPs” lists suspensions and minimum penalties for violations of the Act and regulations. HIOs are required to include penalties in their rulebooks
8

for violations that equal or exceed the penalties listed in paragraph (c) of the section; minimum penalties are specified in that paragraph. HIOs are also required in this section to assess and enforce the penalty, as well as and any suspension included with the penalty. The HIO must provide a process, subject to APHIS approval, for alleged violators to appeal penalties.

8
Rulebooks issued by HIOs or associations also include rules and regulations for showing horses and descriptions of the several classes and divisions in which horses show.

Section 11.40 lists prohibitions and requirements concerning persons involved in transportation of certain horses, including providing APHIS with transportation information in order to determine compliance with the Act and regulations.

Section § 11.41 currently requires each HIO or association which sponsors or sanctions any horse show, exhibition, or sale or auction, to furnish the Department by March 1st of each year with all such HIO or association rulebooks, and disciplinary procedures for the previous year pertaining to violations of the Act or regulations, applicable to such horse show, exhibition, or sale or auction. Each HIO or association must also furnish the Department with a quarterly report of all disciplinary actions taken against the management of
9

any horse show, exhibition, sale, or auction, any exhibitor, or any licensed DQP, for violation of the Act or regulations, and the results. The Department retains the authority to initiate enforcement proceedings with respect to any violation of the Act.

9
Due to a typographical error, the regulations in this section currently say, “management or” rather than “management of.” However, contextually, the latter is implied.

Part 12 of the Horse Protection regulations reference the rules of practice for USDA as promulgated in 7 CFR part 1.

Section 12.1 addresses the scope and applicability of rules of practice. These rules of practice are applicable to adjudicatory, administrative proceedings under section 6(a) of the Act (15 U.S.C. 1825(a)) and sections 6(b) and (c) of the Act (15 U.S.C. 1825(b) and (c)).

Lastly, § 12.10, “Stipulations,” provides that the Administrator may enter into a stipulation with any person notified of an apparent violation of the Act or regulations if that person waives a hearing and agrees to pay a specified civil penalty within a designated time.

Evaluation of the Horse Protection Program

Consistent with the aims of the HPA, the goal of the USDA-APHIS Horse Protection program and regulations is to eliminate the inhumane practice of soring and by so doing promote fair competition in horse shows and exhibitions. Since 1979, when APHIS promulgated the regulations to allow management to appoint qualified persons to conduct inspections, the Agency has regularly evaluated the effectiveness of the Horse Protection program and sought ways to improve its approaches to ending soring.

Unfortunately, soring persists despite the Agency's efforts to regulate and work with the Tennessee Walking Horse and racking horse industries to eliminate the practice. In September 2010, USDA's Office of the Inspector General (OIG) formally evaluated APHIS' oversight of the Horse Protection program
10

in accordance with generally accepted government auditing standards.
11

USDA-OIG concluded that the inspection program, in which the horse industry trains and licenses DQPs to inspect horses under APHIS' oversight, is ineffective in ensuring that horses are not sore upon inspection as required under the Act.

10
USDA-OIG, Administration of the Horse Protection Program and the Slaughter Horse Transport Program Audit Report, 33601-2-KC, September 2010. The document is available on the
Regulations.gov
website (see under
ADDRESSES
in this document for a link to
Regulations.gov
).

11

Generally Accepted Government Auditing Standards
(the “Yellow Book”) is a publication of the U.S. Government Accountability Office (GAO):
https://www.gao.gov/assets/gao-18-568g.pdf.

As part of the audit, OIG auditors performed fieldwork in 2008 and 2009 at APHIS offices in Washington, DC and Riverdale, Maryland. In addition, auditors completed field visits to horse shows in Florida, Kentucky, Missouri, South Carolina, and Tennessee, and reviewed laws, regulations, procedures, and inspection protocols relating to oversight of DQPs. They also interviewed APHIS program officials to understand how they ensure oversight of their respective programs and reviewed available laws, regulations, procedures, and program documents to evaluate program implementation. Audit staff also interviewed personnel from USDA-APHIS Investigative and Enforcement Services to understand their role in collecting evidence for Federal cases, as well as USDA Office of General Counsel officials to learn their processes for evaluating potential cases for enforcement, prosecution, and closing of Federal cases related to violations of the Act. APHIS Review and Analysis Branch personnel were interviewed regarding HIO record reviews performed and their study of the violation rate disparity that exists when APHIS veterinarians are present at shows, sales, and exhibitions.

OIG auditors also reviewed show and sale reports for 34 shows that they attended in 2008, in order to identify problems noted by APHIS veterinarians relating to DQP performance and the issuance of violation tickets. Audit staff interviewed HIO officials to discuss their perspective on APHIS' oversight of the DQP program and interviewed DQPs to discuss the program and possible improvements. Finally, auditors attended a training seminar hosted by

APHIS for Tennessee Walking horse trainers to learn about new inspection procedures and to observe APHIS personnel interacting with industry trainers.

During these evaluations, OIG auditors identified multiple conflicts of interest among DQPs, the HIOs that train, license, and employ them, horse exhibitors, and management of shows and exhibitions that affiliate with HIOs for inspection services. OIG concluded that these conflicts of interest contributed to horses being allowed to compete while sore. They noted that some DQPs are reluctant to dismiss sored horses discovered during inspections, as doing so inconveniences event management and makes it less likely that such DQPs will be hired to inspect at future shows. Moreover, some DQPs own and exhibit their own horses, so a DQP inspecting an exhibitor's horse at one show may be facing that exhibitor conducting inspections at another show. As a consequence, auditors found that some DQPs frequently failed to inspect horses visually and physically in accordance with the regulations and allowed sored horses to show.

OIG auditors also discovered that some DQPs avoid documenting instances of soring in several ways. DQPs may provide only a warning to exhibitors when they detect soring in a horse, when under the regulations they are required to recommend to event management that the horse be prohibited from performing. The auditors also concluded that DQPs fail to sufficiently inspect and weigh chains, boots, and other action devices as required under the regulations. The report noted that when DQPs document a noncompliance with the Act, they sometimes identify a stable hand or a relative of the exhibitor as the alleged violator, so that the person actually at fault for the alleged violation can avoid responsibility. Further, the OIG report found that no reliable controls are in place to prevent an exhibitor who is serving an industry-issued suspension for a violation from competing in another show.

USDA-OIG's findings regarding the persistence of soring are consistent with those of the USDA's Office of the Judicial Officer (OJO), which issues final decisions on behalf of the Secretary of Agriculture for purposes of judicial review.
12

The Secretary of Agriculture, through the OJO, has found that DQP inspections of horses are less probative than inspections conducted by APHIS VMOs. Decisions issued by the OJO include accounts of exhibitors showing sored horses that had been inspected and cleared by DQPs, cursory inspections or use of incorrect methods by DQPs, and exhibitors attempting to avoid violations by having another person acknowledge responsibility.

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

As the USDA-OIG audit showed, DQPs are less likely to issue violations and more likely to allow sored horses to perform when APHIS officials are not present to observe and confirm the outcome of inspections. In a review of program data from 2005 to 2008, the OIG audit report
13

noted that out of 1,607 events in which DQPs provided inspection services, 49 percent of the violations they issued occurred at the 108 events at which APHIS officials were also present, suggesting that DQPs were considerably more inclined to issue violations when under APHIS observation than when they were not.

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

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

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

Moreover, DQPs consistently reported higher rates of noncompliance when APHIS officials were in attendance than when they were not. In FY 2021, for example, if only horses wearing “performance packages” (
i.e.,
a padded horse) are considered, APHIS officials detected 158 instances of noncompliance with the HPA out of the 398 horses APHIS inspected at the 17 events attended, resulting in close to a 40 percent rate of noncompliance for performance horses. In contrast, of the 207 events attended and inspected by DQPs during the same period, DQPs detected just 321 instances of noncompliance with the HPA out of the 11,825 performance horses they inspected, recording only a 1.9 percent rate of noncompliance when APHIS officials were not present and 7.1 percent when they were.

Also notable is that the rate of noncompliance detected for horses wearing performance packages was significantly and consistently higher than that detected for flat-shod horses (Table 2). The marked difference between the rates of noncompliance found in padded performance classes and those found in flat-shod classes indicates that soring is concentrated in horses made to perform the exaggerated and unnatural chest-high gait popularly known as the “big lick.” Table 3 shows a similar discrepancy between performance and flat-shod horses regarding positive tests for prohibited substances.

Table 1—Performance Horse Inspection Data for HPA-Covered Events From FY 2017-2022

Entries
inspected
by DQPs (APHIS not present)

HPA non-compliances
detected
by DQPs (APHIS not present)

Non-
compliance
rate
detected
by DQPs (APHIS not present)
(%)

Entries
inspected by DQPs (APHIS present)

HPA Non-compliances detected by DQPs (APHIS present)

Non-
compliance
rate
detected
by DQPs (APHIS present)
(%)

Entries

inspected by APHIS
1

HPA Non-compliances detected by APHIS

Non-
compliance
rate
detected
by APHIS
(%)

FY 2022
9,746
174
1.8
3,220
219
6.8
930
317
34.1

FY 2021
11,825
224
1.9
1,373
97
7.1
398
158
39.7

FY 2020
8,522
251
2.9
1,107
88
7.9
276
79
28.6

FY 2019
9,698
417
4.3
2,978
297
10.0
901
233
25.9

FY 2018
9,290
277
3.0
4,427
230
5.2
1,081
100
9.3

FY 2017
9,992
154
1.5
4,112
163
4.0
1,005
126
12.5

1
Horse industry DQPs conducted inspections at these events. Not included are the few events APHIS attended where DQPs were not present.

Table 2—Flat-Shod Horse Inspection Data for HPA-Covered Events From FY 2017-2022

Entries
inspected
by DQPs (APHIS not present)

HPA non-compliances
detected
by DQPs (APHIS not present)

Non-
compliance
rate
detected
by DQPs (APHIS not present)
(%)

Entries
inspected
by DQPs (APHIS present)

HPA non-compliances
detected by DQPs (APHIS present)

Non-
compliance
rate
detected
by DQPs (APHIS present)
(%)

Entries

inspected by APHIS
1

HPA non-compliances
detected by APHIS

Non-
compliance
rate
detected
by APHIS
(%)

FY 2022
29,822
16
0.1
4,956
16
0.3
357
6
1.7

FY 2021
33,949
31
0.1
1,624
3
0.2
143
1
0.7

FY 2020
27,252
16
0.1
758
5
0.7
50
1
2.0

FY 2019
35,302
32
0.1
4,045
24
0.6
297
16
5.4

FY 2018
32,624
14
0.04
5,168
8
0.2
475
5
1.1

FY 2017
31,871
9
0.03
3,818
17
0.4
483
3
0.6

1
Horse industry DQPs conducted inspections at these events. Not included are the few events APHIS attended where DQPs were not present.

Table 3—Prohibited Substance Testing Data for HPA-Covered Events From FY 2017-2022

Performance
horses tested
for prohibited
substances

Performance
horses positive
for prohibited

substances
1

Flat-shod
horses tested
for prohibited
substances

Flat-shod
horses positive
for prohibited

substances
2

FY 2022
1,196
55
382
4

FY 2021
1,104
71
292
2

FY 2020
51
8
11
1

FY 2019
111
84
23
3

FY 2018
194
144
66
28

FY 2017
123
83
35
10

2
These numbers reflect substances the laboratory reported to APHIS as significant findings.

While the data in tables 1 and 2 contain statistical anomalies and represent only a sampling of rates of noncompliance, the discrepancy between soring detected when APHIS officials are present at shows and when they are not is broadly consistent over time. We have considered several possible explanations for this discrepancy. In the absence of APHIS representatives, some DQPs may feel complacent and less focused on inspecting horses accurately, not due to any intention to allow a sore horse to show, but simply through inattention. It also may be that some DQPs are not receiving proper training in conducting inspections, although the evidence above suggests that, on the whole, DQPs are capable of diagnosing sored horses when under observation by APHIS representatives. We find none of these explanations credible in accounting for the discrepancy in soring diagnoses with and without APHIS representatives present, nor do we believe that a significantly different outcome would emerge if APHIS inspected every horse at every event. Our conclusion, as was also the conclusion of the OIG audit, is that a key obstacle to eliminating soring under the Horse Protection program is the unwillingness of some DQPs to correctly palpate and observe other actions necessary to making a proper diagnosis.

The data and findings presented in the OIG report and our evaluation of inspection records show that soring is still underdiagnosed in part because of the above noted conflicts of interest within the Tennessee Walking Horse and racking horse industries. The report also confirmed that APHIS lacked a sufficient number of veterinary officers to attend and oversee inspections at all shows. The report recommended that APHIS abolish the DQP program and establish by regulation that only independent, accredited veterinarians perform inspections at sanctioned shows. It also recommended that better controls be instituted to prevent persons disqualified for HPA infractions at sanctioned events from participating in subsequent events. The report added that APHIS should hire and train these

inspectors and pass the costs for inspections along to event management. In return, shows would benefit from improved compliance and exhibitors would see fairer competition.

As indicated in its 2010 response to the report, APHIS agreed with the intent of the USDA-OIG recommendations. APHIS responded that it would propose a regulatory change to abolish the current DQP licensing system and have the Agency be the only entity authorized to train and license DQPs but stated that it could not predict the timing for doing so. APHIS also stated that it would establish strict qualifications to prohibit conflicts of interest so that DQPs having close ties with the horse show industry would be excluded from licensing. APHIS additionally declared at the time that it would continue to allow HIOs to hire and compensate DQPs to inspect horse shows but they would have to use only DQPs trained and licensed by APHIS.
15

This would replace the practice, still in place today, of DQPs being trained and licensed under an HIO-run program under APHIS oversight, a practice that, as discussed immediately below, APHIS has determined to present an insoluble conflict of interests.

15
USDA-OIG Audit Report, page 18.

APHIS' response to the USDA-OIG audit report formed the basis for our proposed 2016 revision of the HPA regulations, discussed below.
16

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

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

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

2011 HPA Rulemaking

In 2011, APHIS initiated work on a rulemaking to reduce industry conflicts of interest and participation of suspended persons in HPA-covered events, as well as further restrict the physical means by which horses are sored. On July 26, 2016, we published in the
Federal Register
(81 FR 49112-49137, Docket No. APHIS-2011-0009) a proposal to amend the regulations to provide that APHIS, rather than HIOs, would train and license inspectors to diagnose sored horses and determine compliance with the Act at horse shows, exhibitions, sales, and auctions.

We invited the public to address our proposal to have APHIS train and license inspectors to address the conflict of interests between DQPs and the industry that results in underreporting violations of the Act. Following the recommendation from the USDA-OIG audit, we further proposed that only veterinarians and veterinary technicians,
17

screened by APHIS for conflicts of interest and having equine experience, may be licensed to inspect horses for soring at horse shows, exhibitions, sales, and auctions. This would help ensure that inspectors possess the medical expertise and adherence to professional veterinary ethics codes to detect and diagnose sore horses capably and reliably.

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

We also proposed in 2016 to amend the prohibitions on devices, equipment, substances, and practices that can cause or mask soring or can reasonably be expected to do so, particularly with respect to Tennessee Walking Horses and racking horses.

We solicited public comments on the proposal and received 130,975 submissions, as well as comments provided at 5 listening sessions. Comments came from State and Federal elected officials, including current and former U.S. Senators and Representatives; State agricultural agencies; farm bureaus; gaited horse organizations; trotting horse federations and organizations; other domestic and foreign horse industry organizations; veterinarians and veterinary associations; horse rescue and animal welfare advocacy organizations; horse owners, trainers, and farriers; small business owners; and the general public.

After responding to public requests to extend the proposal comment period,
18

we reviewed the comments and, on January 11, 2017, we submitted a final rule to the Office of the Federal Register (OFR) for publication. That rule was filed for public inspection, in advance of publication, on January 19, 2017. However, on January 20, 2017, the Chief of Staff of the President issued a memorandum instructing Federal agencies to immediately withdraw all regulations awaiting publication at the OFR.
19

In response to the memorandum, APHIS withdrew the rule from the OFR and it did not publish. The proposed rule on which the final rule was based was also subsequently withdrawn
20

from publication.

18
81 FR 65307 (Docket No. APHIS-2011-0009), September 22, 2016.

19
82 FR 8346, January 20, 2017.

20
December 13, 2021 (86 FR 70755, Docket No. APHIS-2011-0009).

On August 13, 2019, the Humane Society of the United States and other non-governmental organizations filed a lawsuit. HSUS argued that the 2017 HPA final rule had been duly promulgated and could not be withdrawn without first providing public notice in the
Federal Register
and an opportunity for public comment. On July 27, 2020, the U.S. District Court for the District of Columbia dismissed the suit, holding that a rule becomes final upon publication in the
Federal Register
.

On July 22, 2022, the U.S. Court of Appeals for the D.C. Circuit reversed and remanded, ruling that APHIS had to

provide notice and an opportunity for comment before withdrawing a rule that was available for public inspection, but not yet published in the
Federal Register
. Humane Soc'y of the U.S.
v.
U.S. Dep't of Agric.,
41 F.4th 564, 565 (D.C. Cir. 2022). The mandate was issued December 13, 2022.

On May 12, 2023, the U.S. District Court issued its decision on remand without vacatur, but ordered that the 2017 rule would take automatic effect if the agency failed to take appropriate remedial action: Either promulgate an updated version of the rule, or otherwise remedy the deficiency in the withdrawal of the 2017 rule by conducting notice and comment on the withdrawal.
Humane Soc'y of the U.S.
v.
U.S. Dep't of Agric.,
No. 19-cv-2458 BAH, 2023 WL 3433970 (D.D.C. May 12, 2023). APHIS signaled to the Court its intent to remedy the deficiency by proposing to withdraw the 2017 final rule through notice and comment processes, and a notice of proposed rulemaking to withdraw the 2017 rule was published in the
Federal Register
on July 21, 2023 (88 FR 47068-47071, Docket No. APHIS-2011-0009).

This current proposal incorporates steps taken in the 2017 HPA final rule to eliminate soring. In addition, it provides recent support and data emphasizing that the causes of soring are long-standing and endemic, and not simply aberrations that occurred in the past. To this end, we introduce into this proposal the Horse Protection program's latest inspection statistics and a recent study
21

by the National Academy of Sciences (NAS), discussed below, that analyzes the causes of soring and its diagnosis in light of the current regulations.

21

A Review of Methods for Detecting Soreness in Horse
s. Washington, DC: The National Academies Press, 2021:
https://doi.org/10.17226/25949.

National Academy of Sciences (NAS) Study

The NAS study, published in 2021, concurs with the USDA-OIG audit report's recommendation that a regulatory change to the inspection component of the Horse Protection program is necessary to eliminate the conflicts of interest that encourage soring. The study was initiated in July 2017, when APHIS, the Tennessee Department of Agriculture, and the Tennessee Walking Horse Breeders Foundation jointly requested that NAS evaluate methods to detect soreness to help ensure that Horse Protection inspection protocols are based on sound scientific principles that can be applied consistently.

In the study, NAS examined the methods currently employed by DQPs and APHIS VMOs for detecting soreness in Tennessee Walking Horses and evaluated current inspector qualifications. NAS also highlighted emerging approaches for detecting soreness in horses and evaluated the role of the scar rule, a set of visual criteria in current § 11.3 used to determine if a horse has been sored. The committee that drafted the NAS study consisted of equine veterinarians and other professionals qualified to review the veterinary medical literature on hoof and pastern pain and skin changes and evaluate methods used to identify soreness in horses as defined in the Act and regulations for scientific validity. As part of their research, the committee reviewed USDA training materials and 61 DQP inspection videos provided by an HIO, and observed problems consistent with those cited in the OIG audit report 11 years earlier. The NAS committee confirmed, in brief, that due to both inadequate HIO training and industry conflicts of interest, DQPs were not consistently or correctly diagnosing sore horses. The committee noted that USDA's “current horse inspection process for detecting soreness involves observation of the horse's movement and posture and palpation of the limbs, which is the gold standard for detecting local pain and inflammation,”
22

and that performing these actions knowledgeably and without conflicts of interest is essential to determining whether a horse is sore.

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

Consistent with the findings of the USDA-OIG audit, the NAS committee concluded that some sored horses were not being identified during inspections. The committee's observation from evaluating the inspection videos was that DQPs are inconsistent in applying diagnostic techniques. During palpation, DQPs “showed large variations in the technique used to palpate the forelimbs from the carpus to the fetlock—from an absent to a very cursory palpation of limited areas at the palmar surface of the distal limb, with minimal attention given to the dorsal surface of the limb.”
23

DQPs were also at times observed in the videos gripping the leg too tightly, which may inhibit responses to limb palpation. By comparison, APHIS VMOs are required to practice a standard procedure that involves palpating the limb in a consistent pattern and pressure, resulting in more accurate soring diagnoses.

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

The NAS committee further observed that, in many instances, DQPs did not adequately observe the horse's movement and posture. For example, from its review of inspection videos, the committee noted that DQPs often did not require the horse to take enough steps to determine whether soring or lameness was present.

At most shows, inspections are performed by a DQP employed by an HIO; less often, by an APHIS VMO, or in some instances, by both. The NAS committee reviewed the training requirements for DQPs in the regulations and noted that not only are DQPs not required to be veterinarians, but that they receive instruction from trainers who are not required to be veterinarians. APHIS VMOs, by contrast, have veterinary degrees and receive extensive medical training in identifying dermatologic, physiological, and behavioral indications of soring in horses.

The NAS committee strongly recommended that the use of DQPs for inspections under the current regulations be discontinued and that only veterinarians, preferably with equine experience, be allowed to examine horses, as is done in other equine competitions.
24

The committee added that if APHIS continues to use third-party inspectors, they should be veterinarians or other equine industry professionals who are screened for potential conflicts of interest and trained by APHIS to properly inspect horses for soring. The committee also stated that consequences for performing substandard examinations should be strictly enforced, and that reports of substandard performance and enforcement warning letters should come from APHIS, not HIOs. We agree with these recommendations and propose in this rulemaking that qualified inspectors be screened and trained by APHIS, and that inspectors be veterinarians as availability allows. We discuss further below how we propose to amend the regulations consistent with these recommendations.

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

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

desire by both the industry and APHIS that inspection protocols be based on sound scientific principles that can be applied consistently. The NAS committee analyzed the scar rule with this in mind, and based on their work made recommendations for revising the scar rule language that we believe will make it much easier to understand and apply and more accurate as a tool to diagnose soring. We discuss NAS analysis of the scar rule and explain how its findings have helped to shape our proposed changes to it under “Dermatologic Changes and the Scar Rule.”

The NAS study is the latest major effort to evaluate from a scientific perspective the causes of soring, the current and emerging methods available to diagnose it, and the effectiveness of the current Horse Protection regulations to eliminate the practice. The evidence in the NAS and OIG reports and the Horse Protection program inspection data indicate that many DQPs lack either the correct training or the willingness, or both, to diagnose sored horses, with one outcome—soring persists as an incentive to gain competitive advantage and sored horses continue to appear at shows, exhibitions, sales, and auctions.

Proposed Changes to the Regulations

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

Existing regulations
Where addressed in proposed rule

§ 11.1 Definitions
§ 11.1 Definitions (revised).

§ 11.2 Prohibitions concerning exhibitors
§ 11.6 Prohibitions concerning exhibitors (revised).

§ 11.3 Scar rule
§ 11.6(a)(22) Prohibitions concerning exhibitors (revised).

§ 11.4 Inspection and detention of horses
§ 11.8 Inspection and detention of horses (revised).

§ 11.5 Access to premises and records
§ 11.9 Access to premises and records (revised).

§ 11.6 Inspection space and facility requirements
§ 11.10 Inspection space and facility requirements (revised).

§ 11.6(c) (Non-interference with APHIS personnel)
§ 11.3 Non-interference with APHIS representatives and HPIs (revised).

§ 11.7 Certification and licensing of designated qualified persons (DQPs)
§ 11.19 Authorization and training of Horse Protection Inspectors (new section added). (§ 11.7 would be reserved for future use but its content would be removed.)

§ 11.11 (new section added and reserved).

§ 11.12 (new section added and reserved).

§ 11.20(a) Responsibilities and liabilities of management
§ 11.13(a) Horse shows, horse exhibitions, horse sales, and horse auctions at which the management does not utilize an APHIS representative or Horse Protection Inspector. (new section added and revised).

§ 11.20(b) Responsibilities and liabilities of management
§ 11.13(b) Horse shows, horse exhibitions, horse sales, and horse auctions at which the management utilizes an APHIS representative or Horse Protection Inspector. (new section added and revised).

§ 11.21 Inspection procedures for designated qualified persons (DQPs).
Section removed, as HIOs would no longer train DQPs in inspection procedures.

§ 11.22 Records required and disposition thereof.
§ 11.14 Records required and disposition thereof (new section added and revised).

§ 11.22, § 11.24(a) Records required and disposition thereof; Reporting by management
(§ 11.24(b) is an obsolete requirement and not retained in proposed regulations)

§ 11.14(a) Records required and disposition thereof (new section added and revised).

§ 11.23(a) Inspection of records (§ 11.23(b) pertains to training DQPs and would not be retained in proposed regulations)
§ 11.15 Inspection of records (new section added and revised).

§ 11.16 Reporting by management (new section added).

§ 11.25 Minimum penalties to be assessed and enforced by HIOs that license DQPs
Section removed.

§ 11.40 Prohibitions and requirements concerning persons involved in transportation of certain horses
§ 11.17 Requirements concerning persons involved in transportation of certain horses (new section added and revised).

§ 11.18 Utilization of inspectors (new section added).

§ 11.41 Reporting required of horse industry organizations or associations (pertains to HIOs and not retained in proposed regulations)
Section removed.

Substantive changes we propose to make in part 11 include:

• Removing the requirement that DQPs be trained and licensed by HIOs and removing the term DQPs from the regulations. Instead, APHIS would screen and train qualified persons to be Horse Protection Inspectors, or HPIs. APHIS would authorize these applicants, preferably veterinarians, as HPIs after screening them for potential conflicts of interest and conducting training.

• Removing all regulatory requirements pertaining to HIOs, as HIOs would no longer have any regulatory responsibilities specific to them. APHIS would assume program administration and development, HPI training, and HPI disciplinary actions as necessary to enforce the Act and regulations. Services contracted between HIOs and event management, such as supplying judges and handling show logistics, would not be affected.

• Prohibiting any device, method, practice, or substance applied to any horse that can hide or mask evidence of soring. (Current prohibitions on other items and practices that can reasonably be expected to cause or contribute to soring would be retained in the regulations.)

• Prohibiting all action devices, pads, wedges, and substances on the limbs or feet of Tennessee Walking Horses and racking horses (with exceptions for approved therapeutic uses of pads, wedges, and substances). An action device is any boot, collar, chain, roller, beads, bangles, or other device which

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.

• Replacing the scar rule with language that more accurately describes visible dermatologic changes indicative of soring, and removing the requirement that such changes be bilateral.

• 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.

• Requiring the management of any horse show, exhibition, sale, or auction that elects to utilize an APHIS representative or HPI to inspect horses to have at least one farrier physically present if more than 100 horses are entered in the event, or if there are 100 or fewer horses to have a farrier on call within the local area to be present if requested by an APHIS representative or HPI. Farriers would not be required for shows that do not utilize an inspector.

• Adding new reporting and recordkeeping requirements for management of all horse shows, exhibitions, sales, and auctions covered under the Act. These include retaining records for 90 days of any horse allowed to show under therapeutic treatment, informing APHIS and reporting event information at least 30 days in advance of the event, and notifying APHIS of changes to event information at least 15 days in advance of the event. These requirements are intended to prevent disqualified persons and horses from participating in HPA-covered events and to give APHIS sufficient time to schedule an APHIS representative to inspect at the event, if requested.

To restructure part 11, we propose to reserve current §§ 11.2 and 11.7 and remove §§ 11.20, 11.21, 11.22, 11.23, 11.24, 11.25, 11.40, and 11.41 from the regulations. Requirements for event management recordkeeping, records inspection, and reporting included in §§ 11.20, 11.22, 11.23, and 11.24, as well as requirements for transportation of horses in § 11.40, would be included in new sections we propose.

Our proposed changes to the regulations are detailed below.

Definitions

We would make changes to several terms and definitions in § 11.1 that reflect our proposed changes to the Horse Protection program.

We would amend the definition of
action device
by including “beads” and “bangles” to the illustrative list of devices included under the definition. We are including these devices because they can encircle the leg and move with the horse, striking the skin or creating friction.

We would revise the definition for
Administrator
by adding U.S. mail and email addresses for sending mail to the Administrator of APHIS.

We would remove the definition for
APHIS Show Veterinarian
and revise the definition of
APHIS representative
to mean any employee or official of APHIS. The definition of
APHIS Show Veterinarian
currently means the APHIS veterinarian responsible for the immediate supervision and conduct of the Department's activities under the Act at any horse show, horse exhibition, horse sale or horse auction.

The current definition of
APHIS representative
is any employee of APHIS, or any officer or employee of any State agency who is authorized by the Administrator to perform inspections or any other functions authorized by the Act, including the inspection of the records of any horse show, horse exhibition, horse sale or horse auction. We propose to revise this term to mean “any employee or official of APHIS.” APHIS representatives would include qualified full-time and intermittent VMOs employed and trained by APHIS to inspect horses for soring. HPIs would not be considered to be APHIS representatives under this proposed definition because they are not employees of APHIS and not compensated by the Agency, but rather by the show management that contracts their services.

We would add a definition for the term
custodian,
which would mean any person who presents a horse for inspection at any horse show, exhibition, sale, or auction. We note that a person acting as custodian may typically perform additional roles, such as owner, exhibitor, seller, or transporter. Also, the custodian would have to be able to provide required information about the horse as required in part 11. We are proposing adding this term in order to define the term
custodian
more clearly.

We propose to add the term
day(s
) to § 1.1 and define it to mean business days,
i.e.,
days other than weekends and Federal holidays. In several instances, the regulations require the submission of reports or records with a period of days, and we wish to clarify that weekends and Federal holidays are not included within that day count.

The current definition of
Designated Qualified Person
is “a person meeting the requirements specified in § 11.7 of this part who has been licensed as a DQP by a horse industry organization or association having a DQP program certified by the Department and who may be appointed and delegated authority by the management of any horse show, horse exhibition, horse sale or horse auction under section 4 of the Act to detect or diagnose horses which are sore or to otherwise inspect horses and any records pertaining to such horses for the purposes of enforcing the Act.”

We are proposing to remove the term
Designated Qualified Person or DQP
and its definition, as well as all regulatory requirements in the regulations pertaining to them. We propose instead that APHIS will screen, train, and authorize persons qualified to conduct inspections of horses, devices, and records for the purposes of determining compliance with the Act at horse shows, exhibitions, sales, and auctions. We propose to refer to these qualified persons as Horse Protection Inspectors (HPIs), which would be authorized by APHIS pursuant to proposed § 11.19 and appointed by management of the event. Accordingly, we propose to include a definition for
Horse Protection Inspector
in the regulations, included below.

We would add the term
event manager
and define it to mean the person who has been delegated primary authority by a sponsoring organization for managing a horse show, exhibition, sale, or auction. An individual event manager would need to be designated even if the event is managed by a team of persons. We are proposing this definition in order to clarify management responsibility.

The term
horse industry organization or association
is currently defined as “an organized group of people, having a formal structure, who are engaged in the promotion of horses through the showing, exhibiting, sale, auction, registry, or any activity which contributes to the advancement of the horse.” We would remove the term
horse industry organization or association
and its definition, as we propose to remove all regulatory requirements under the Act pertaining to these groups, including requirements for certification of DQP programs, recordkeeping, and other requirements assigned to them. As we note above, HIOs supply other services to shows and events not subject to regulation, including registering participants and coordinating event logistics, supplying show judges, and promoting events. Under this proposal they could continue contracting with events to perform these services.

We would add the term
Horse Protection Inspector
(HPI) to mean a person meeting the qualifications in proposed § 11.19 whom the Administrator has authorized as an HPI and who may be appointed and delegated authority by the management of any horse show, horse exhibition, horse sale or horse auction under section 4 of the Act to detect or diagnose horses which are sore or to otherwise inspect horses and any records pertaining to such horses for the purposes of detecting or diagnosing soring. Under proposed § 11.16(a)(6), event management wishing to have an APHIS representative conduct inspections at their event are required to notify APHIS at least 30 days in advance of the event.

The current regulations define
inspection
to mean “the examination of any horse and any records pertaining to any horse by use of whatever means are deemed appropriate and necessary for the purpose of determining compliance with the Act and regulations. Such inspection may include, but is not limited to, visual examination of a horse and records, actual physical examination of a horse including touching, rubbing, palpating and observation of vital signs, and the use of any diagnostic device or instrument, and may require the removal of any shoe, pad, action device, or any other equipment, substance or paraphernalia from the horse when deemed necessary by the person conducting such inspection.” To emphasize that any means of determining compliance with the Act and regulations must be approved by APHIS, we would revise the definition of
inspection
to include the words “any visual, physical, and diagnostic means approved by APHIS to determine compliance with the Act and regulations.” The proposed definition would follow the current definition in that such inspection “may include, but is not limited to, visual inspection of a horse and review of records, physical examination of a horse, including touching, rubbing, palpating, and observation of vital signs, and the use of any diagnostic device or instrument, and may require the removal of any shoe or any other equipment, substance, or paraphernalia from the horse when deemed necessary by the professional conducting such inspection.”

We propose to add a definition for
local area,
which we would define as the area within a 10-mile radius of the horse show, exhibition, sale, or auction. We would add this term in conjunction with proposed § 11.13(b)(2), which would require event management to have a farrier on call within the local area if requested by an APHIS representative or HPI appointed by management and 100 or fewer horses are entered in the horse show, exhibition, sale, or auction. When over 100 horses are entered in an event, management would be required to have a farrier onsite unless they elected to enforce the HPA without recourse to an inspector. We invite comments on this definition as to whether it is reasonable with respect to the geographical distribution of farriers, as well as comments on the costs associated with having a farrier at the shows and on call.

The term
lubricant
in the current definitions means “mineral oil, glycerine or petrolatum, or mixtures exclusively thereof, that is applied to the limbs of a horse solely for protective and lubricating purposes while the horse is being shown or exhibited . . . .” We would remove the definition for
lubricant
and prohibit the use of any substances on the limbs of all Tennessee Walking Horses and racking horses. Most substances applied to horses at shows and exhibitions, such as skin and hair conditioners, are not implicated in soring, but they can be used to diminish signs of soring. As we explain under the proposed changes to prohibitions concerning exhibitors, a strong association exists between applications of substances and soring in these particular breeds.

We propose to retain and revise the current definition of
management,
which means “any person or persons who organize, exercise control over, or administer or are responsible for organizing, directing, or administering any horse show, horse exhibition, horse sale or horse auction and specifically includes, but is not limited to, the sponsoring organization and show manager.” We would remove “show manager” from this definition, as we propose removing that term elsewhere in the regulations, and replace it with “event manager,” a term which, as we note above, we propose adding to the regulations.

A definition of
participate
would be added to § 1.1 to mean engaging in any activity, either directly or through an agent, beyond that of a spectator in connection with a horse show, horse exhibition, horse sale, or horse auction, and includes, without limitation, transporting, or arranging for the transportation of, horses to or from equine events, personally giving instructions to exhibitors, being present in the warm-up or inspection areas or in any area where spectators are not allowed, and financing the participation of others in equine events.

Person
in the regulations means “any individual, corporation, company, association, firm, partnership, society, organization, joint stock company, or other legal entity.” We propose to revise the definition by adding “State or local government agency” to the list of illustrative examples. We are proposing this change to highlight that State and local government agencies also fall under the definition of
person
in the regulations.

As currently defined in the regulations,
Regional Director
means “the APHIS veterinarian who is assigned by the Administrator to supervise and perform official duties of APHIS under the Act in a specified State or States.” We propose removing the term from § 11.1 because APHIS representatives performing Horse Protection duties are no longer organized and managed by region.

Sponsoring organization
in the current regulations means “any person under whose immediate auspices and responsibility a horse show, horse exhibition, horse sale, or horse auction is conducted.” We propose to revise the current definition to mean “any person or entity whose direction supports and who assumes responsibility for a horse show, horse exhibition, horse sale, or horse auction that has, is, or will be conducted.” We are making this change to clarify that an “entity” is also included under the definition, and to ensure that any person or entity supporting and assuming responsibility for such an event also falls under the definition. Our proposed revision also clarifies that the sponsoring organization's responsibility applies whether the event in question has already occurred or is yet to occur.

We also propose to add a definition for the term
therapeutic treatment
to mean the treatment of disease, injury, or disorder by or under the supervision of a person licensed to practice veterinary medicine in the State in which such treatment was prescribed. We are proposing to define this term to ensure that therapeutic practices applied to any horse covered under the regulations are administered or overseen by qualified veterinarians only.

Prohibitions Concerning Exhibitors

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

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

Non-Interference With APHIS Representatives

Current § 11.3 contains the “scar rule,” which refers to the presence of certain types of lesions on the horse's pastern and fore pastern suggesting that a horse has been sored. Horses that do not meet the scar rule criteria are considered to be sore and are subject to all prohibitions of the Act.

We propose to remove the scar rule from this section and include the revised language in proposed § 11.6(a)(22). A full discussion of the proposed changes to the scar rule is included under “Dermatologic Changes and the Scar Rule,” below.

The language we propose to add to revised § 11.3 is based on current § 11.6(c) and amended to prohibit persons from assaulting, resisting, opposing, impeding, intimidating, threatening, or interfering with APHIS representatives or HPIs, or in any way influencing attendees of a horse show, exhibition, sale, or auction to do the same. Persons guilty of such violations may be held criminally liable and referred to the U.S. Department of Justice for prosecution. These proposed amendments strengthen regulatory protections for the safety of both APHIS representatives and HPIs appointed by management and engaged in duties at the events listed, as well as the safety of horses and attendees.

Prohibitions for Disqualified Persons

Section 11.4 of the current regulations includes requirements regarding inspection of horses by APHIS representatives, as well as detention of horses for inspection if an APHIS representative has probable cause to believe that a horse is sore. We propose to revise § 11.4 to include provisions regarding the status of persons whom USDA has disqualified from showing, exhibiting, selling, or auctioning horses. Provisions for inspection and detention of horses, which currently comprise this section, would be moved to a new § 11.8.

The proposed text for § 11.4 would indicate that any person disqualified from participating in any horse show, exhibition, sale, or auction shall not show, exhibit, or enter any horse, directly or indirectly through any agent, employee, corporation, partnership, or other device, and shall not judge, manage, or otherwise participate in events covered by the Act within the period during which the disqualification is in effect. We would add this provision to the regulations to ensure that prohibitions are in place to address attempts by disqualified persons to continue participating in events listed above either directly or indirectly through the aid of other identities or persons.

Appeal of Inspection Report

Section 11.5 currently includes requirements for the management of any horse show, exhibition, or horse sale or auction to provide APHIS representatives with unlimited access to the grandstands and all other premises of any horse show, exhibition, or horse sale or auction, including any adjacent areas under their direction, for the purpose of inspecting horses or records. Management must also provide an adequate, safe, and accessible area for the visual inspection and observation of horses. This section also requires persons having custody of any horse at any horse show, exhibition, or horse sale or auction to admit any APHIS representative or DQP appointed by management to all areas of barns, compounds, horse vans, horse trailers, stables, or other grounds or related areas at any horse show, exhibition, or horse sale or auction, for the purpose of inspecting any such horse at reasonable times.

We propose changing the heading of § 11.5 to read “Appeal of inspection report” and moving provisions for access to premises and records to a new § 11.9. Revised § 11.5 would provide that any horse owner, trainer, exhibitor, custodian or transporter may appeal inspection report findings all or in part to the Administrator. The appeal would require a written statement contesting the inspection finding(s) and include any documentation or other information in support of the appeal. The appeal would have to be received by the Administrator, preferably by electronic mail, or by U.S. mail,
25

within 21 business days of receipt of the inspection report. The Administrator would send a final decision, either via electronic mail or U.S. mail, to the person requesting the appeal.

25
Email address:
horseprotection@usda.gov.
Appeals may also be sent via U.S. mail to APHIS, 2150 Centre Ave., Bldg. B, MS 3W-11, Fort Collins, CO 80547.

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

Pre-Show Review of a Finding of Soring

In response to the 2016 proposed HPA rule, APHIS received some comments raising due process concerns. The comments included a request that APHIS develop and implement a pre-show process whereby owners and trainers may contest and seek immediate review of a finding that a horse is sore from a decision-maker, and the suggestion that when USDA finds that a horse is sore after being passed by a DQP, the horse should be allowed to be shown until there is a final decision in the matter.

The HPA vests in management the responsibility to disqualify or prohibit a horse from being shown, exhibited, sold, or auctioned following a determination by an inspector that the horse is sore.
See
15 U.S.C. 1823(a). Specifically, the statute and regulations require management to (among other acts) disqualify a horse in instances where (1) the horse is sore or (2) management is notified by a DQP or APHIS representative that the horse is sore.
Id.;
see § 11.20(b)(1) of the regulations (management “shall immediately disqualify” a horse identified by the DQP to be sore or otherwise known by management to be sore). Given this nexus between management's decision and an inspector's findings, and in light of the due process concerns raised in comments on the 2016 proposed rule, we seek additional public comment on potential ways to resolve disputes arising from a determination of soring following inspection, including possible options for resolving such disputes before a show takes place.

We are concerned that the suggestions by commenters on the 2016 proposed rule are not consistent with the intent or language of the Act itself. For instance, if a horse determined by an inspector to be sore is allowed to be shown until a final decision is made, this could undermine Congress's two primary goals in enacting the Act: To eliminate the cruel and inhumane practice of horse soring and to ensure fair competition at horse shows and exhibitions by not permitting sored horses to unfairly compete with horses that are not sore.
See
15 U.S.C. 1822. Moreover, it would directly contradict paragraph (a) of section 1823 of the Act, which requires that “[t]he management of any horse show or horse exhibition shall disqualify any horse from being shown or exhibited (1) which is sore or (2) if the management has been notified by [an inspector] that the horse is sore.”

Section 1824 of the Act underscores that management must disqualify such horses by listing the failure to do so as an “unlawful act” under the Act. Section 1825 of the Act authorizes fines, imprisonment and civil penalties for violations of section 1824. Finally, Congress found that “horses shown or exhibited which are sore, where such soreness improves the performance of such horse, compete unfairly with horses which are not sore.” 15 U.S.C. 1822(2).

In addition to these statutory concerns, the process envisioned by past commenters, or other lengthy processes that could not be completed before a scheduled show or exhibition, as they are currently operated, could strongly incentivize owners to contest findings of soring in order to delay as long as possible any possible disqualification. This could undermine the intent and requirements of the Act for the reasons discussed above.

One possible solution could be to conduct the inspections far enough in advance of the exhibition or show to allow for an opportunity to be heard before the event. However, given the current structure of horse shows and exhibitions, as well as the need to ensure that horses are not sored following an inspection and before a show, this proposal would require significant internal changes and cooperation from the horse industry. Most horse shows and exhibitions are 1-day events that are set up during the day and take place in the early evening. Inspections take place approximately 30 minutes before the horse enters the arena, and immediately following the inspection, the horse enters a supervised warm-up area and does not leave that area until the horse enters the arena to perform. This is to ensure that the horse's conditions do not change following its inspection and before the horse enters the show ring. Under the current structure, there is insufficient time to conduct a review process between the inspection and the horse being exhibited or shown, and it would require a significant change in show and exhibition practices, and possible restructuring of the industry itself, to allow such a process to take place. It would also entail a significant reallocation of existing APHIS resources. We may need to deploy more inspectors to shows, have them arrive earlier, develop monitoring protocols to ensure horses are not sored following inspection but before the event, and provide both personnel and direct and indirect support costs to the review process.

To that end, in order to assess the feasibility of conducting inspections in advance of a show or exhibition in a manner that would afford a pre-show review process while still ensuring that the horse is not subsequently sored after inspection, we request specific public comment on the following:

• Could pre-show inspections still take place in the same physical area as the show or exhibition? If not, where should they take place?

• How early should pre-show inspections take place, in order to ensure time for a review process?

• How should the health and safety of the horse be monitored after the inspection takes place in order to ensure that the horse is not subsequently sored? Who would be responsible for monitoring to ensure that the horse is not subsequently sored?

• What type of review process would be afforded to contest a finding that a horse is sore? Who would decide these matters? What parties should be involved? Do the parties need to be physically present at the site of the show or exhibition?

• What timing mechanisms would need to be in place to ensure the review process can be completed in time for the horse to show, if the initial inspection is overturned? What actions should occur in the event that the review process is not completed before the show or exhibition?

• How would any pre-show review process implicate or interact with the existing reinspection process currently located in section 11.4(h), as proposed for amendment and relocation at section 11.8(h)?

In addition to the alternative that we have identified to address the issue, we acknowledge that there may be other means of addressing the issue that we are not aware of. To that end, we request public comment regarding other possible alternatives, including consideration of regulatory bodies, statutory authorities, or incentives or disincentives, including the withholding or forfeiture of prize money, that could be applied to address the issue.

Prohibited Items and Practices

Current § 11.2 contains prohibitions on the use of certain action devices, equipment, pads, substances, and practices on horses at any horse show, exhibition, sale or auction covered under the Act.

The prohibitions are intended to pertain to the devices, practices, and substances that are used either to sore horses directly or contribute to the act of soring (an example of the latter being a hoof pad that hides a sharp object). Reaction to the pain caused by soring results in the exaggerated chest-high gait prized in certain classes at Tennessee Walking horse and racking horse shows. Chains and other devices, especially those that are heavy or have sharp or rough edges, can inflict pain and exacerbate soring through repeated strikes to the leg while the horse performs, particularly if irritating substances have also been applied to the skin. Pads that cause a horse's foot to strike the ground at an unnatural angle can also induce pain and soring over time, as can heavy pads and horseshoes. Substances can be used to mask the pain a sore horse feels long enough to pass inspection, while dyes and other substances can hide lesions and other signs of soring on the skin. As reflected in the inspection statistics presented above, soring is diagnosed almost exclusively at events featuring Tennessee Walking horses and racking horses that perform in pads and action devices. By comparison, APHIS and DQP inspections at flat-shod events in which horses do not wear pads and action devices rarely find soring violations.

We note that the current regulations do not prohibit all devices—for example, in § 11.2(b), certain rollers, chains, and bell boots weighing 6 ounces or less are permitted, as are certain types of pads. In proposed § 11.6(b), we allow for the restricted use of some items so that events featuring breeds other than Tennessee Walking Horses and racking horses may continue using them. APHIS recognizes that action devices and pads are sometimes used for purposes that do not cause soring during training of Morgans, American Saddlebreds, and many other gaited breeds. Applying light chains or other devices on the pastern, for example, creates a sensory, or proprioceptive, reaction that can stimulate front and rear hoof height without pain, and that on rear hooves can increase the range of motion.
26

While all horse breeds are subject to provisions of the Act, soring imparts little to no advantage to competitors at these shows, as the gaits on which most breeds are evaluated are noticeably distinct from the exaggerated “big lick” step featured at many Tennessee Walking horses and racking horse events.
27

26
Clayton, Hilary, “Rehabilitation for Horses.” Paper presented at American Association of Equine Practitioners, July 2014.

27
We acknowledge that many owners of Tennessee Walking horses and racking horses show their horses in “flat shod” classes, meaning they do not use the action devices and thick pads associated

with soring and required as a condition of entry in performance classes.

The restrictions on pads, devices, and activities listed in current § 11.2(b) make no distinction between breeds that are often diagnosed as sore—Tennessee Walking Horses and racking horses—and other gaited breeds that are not known to be sored. As currently permitted under § 11.2(b), many breeds perform in light chains under six ounces and low pads that elevate the heel by less than an inch. We considered prohibiting all non-therapeutic pads, action devices, substances, and other practices for all breeds at all covered events, but in doing so we would unfairly conflate those breeds that do not sore for competitive advantage with those that do.

Accordingly, we propose to revise § 11.6(b) by including a more restrictive list of prohibitions specific to Tennessee Walking Horses and racking horses. We base our reasons for establishing prohibitions specific to these breeds on several points. As we have noted above, our records show that the clear majority of horses diagnosed by APHIS representatives and DQPs as being sore are Tennessee Walking Horses and racking horses, specifically those that participate in pads and action devices in certain competitions favoring a high-stepping, accentuated gait. Insofar as APHIS directs most of its compliance inspections toward Tennessee Walking Horse and racking horse events, it follows that our records would show that almost all noncompliances we report are among these two breeds. However, based on our informed knowledge about the practices of all breeds performing or exhibiting in the United States, we know that soring in breeds other than Tennessee Walking Horses and racking horses confers no significant performance advantage and is therefore rarely if ever practiced. APHIS-Animal Care officials remain updated on the activities of all breed organizations and investigate any allegations or reports suggesting that violations of the Act are occurring within any breed. We invite public comment on any observations persons may have regarding soring in other breeds.

Further, APHIS has observed from its experience in administering and enforcing the Act and regulations (including through compliance inspections, investigations, enforcement of alleged violations, oversight of industry-based inspection programs, and outreach to the horse industry) that a relationship continues to exist between the use of certain permitted devices and instances of soring, notably among Tennessee Walking Horses and racking horses, when used alone or in conjunction with prohibited substances.

We acknowledge that at many, if not most, shows featuring Tennessee Walking Horses and racking horses, the majority of entrants are exhibiting or performing with so called “flat-shod” horses (those that do not normally use the pads and action devices this proposed rule would seek to prohibit). Some shows featuring Tennessee Walking Horses and racking horses are entirely flat-shod in nature and already prohibit pads and action devices. We note that in 2022, almost 35,000 flat shod entries were inspected by DQPs and APHIS representatives combined, with a compliance rate above 99 percent. We do not consider such shows to be high risk with respect to noncompliance with the Act and regulations.

Action Devices, Boots, Collars

Under § 11.2(b), the regulations currently allow the use of a chain or other action device on each limb of a horse if the device weighs 6 ounces or less.
Action device
is currently defined as “a boot, collar, chain, roller, or other device which encircles or is placed upon the lower extremity of the leg of a horse in such a manner that it can either rotate around the leg, or slide up and down the leg so as to cause friction, or which can strike the hoof, coronet band or fetlock joint.” In the Definitions section, we proposed adding beads and bangles to the illustrative list of action devices, as these devices encircle the leg, and strike the leg or create friction during movement.

Equine veterinarians on the NAS study committee noted that abnormal skin changes seen on the pasterns of Tennessee Walking Horses are not observed on other breeds of horses such as Arabians, American Saddlebreds, and Morgans, which sometimes train with action devices but do not usually wear them when competing. Moreover, action devices used on other breeds typically are of lower weight than those used on Tennessee Walking Horses and racking horses. The committee also noted that Tennessee Walking Horses are often trained with action devices weighing in excess of the 6-ounce action devices currently allowed for competition and concluded that the use of heavier or more cumbersome devices in training may be more likely to contribute to the formation of skin lesions.
28

28

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

NAS' observations regarding action devices and their role in soring are consistent with those of an older but still relevant study
29

conducted at the Auburn University School of Veterinary Medicine from 1978 to 1982, which evaluated the effects of acute and chronic inflammatory responses on the front and hind limbs of horses. The findings of that study suggest a strong relationship between soring and the combined use of action devices and substances. Horses were exercised for 2-3 weeks wearing 2-, 4-, and 6-ounce chains, after which it was determined that the use of such chains for a duration of 2 to 3 weeks “did not produce any harmful effects to the horses' legs, with exception to some loss of hair from 6-ounce chains in the pastern areas.” However, in another phase
30

of the study, it was determined that the combined use of prohibited substances and chains on the pasterns of horses caused lesions, tissue damage, and visible alterations of behavior consistent with soring. Although this phase of the study used 10-ounce chains, 4 ounces heavier than what is currently allowed, if a horse may be trained sore using 10-ounce chains (or other weight and/or substance combinations) and then shown in 6-ounce chains, the use of a 6-ounce chain may reasonably be expected to cause the horse to experience pain while walking, trotting, or otherwise moving.
31

29
Thermography in Diagnosis of Inflammatory Processes in Horses in Response to Various Chemical and Physical Factors: Summary of the Research from September 1978 to December 1982. Submitted to the U.S. Department of Agriculture by Dr. Ram C. Purohit, Associate Professor, School of Veterinary Medicine, Auburn University. The study is available at the regulations.gov address included under
ADDRESSES
or by contacting the individual listed under
FOR FURTHER INFORMATION CONTACT
above.

30
Phase 7, “Simultaneous Use of Chemical and Chains for Soring Horses”.

31
The NAS study (page 81) also indicated that heavier chains and other action devices are typically used when training Tennessee Walking Horses.

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

of prohibited substances and/or action devices such as chains and rollers of nearly any weight, including the 6-ounce weight limit currently in the regulations.

Under proposed § 11.6(a), “General Prohibitions for All Horses,” we would continue to prohibit any action device, method, practice, or substance to be used on any horse at any horse event covered under the Act if such use causes or can reasonably be expected to cause such horse to be sore or is otherwise used to mask previous and/or ongoing soring.

Proposed § 11.6(b) lists prohibitions that apply to all horses at covered events but which allow for some devices used by some breeds for purposes unrelated to soring, as discussed above.

Under § 11.6(c)(1), we would prohibit all action devices on Tennessee Walking Horses and racking horses, and in paragraph (c)(2) prohibit all artificial extension of the toe length unless the horse has been prescribed and is receiving therapeutic treatment using artificial extension of the toe length. In proposed paragraph (c)(3) we would prohibit all pads and wedges on any Tennessee Walking Horse or racking horse at any horse show, exhibition, sale, or auction, unless the horse has been prescribed and is receiving therapeutic treatment using pads or wedges as approved in writing by a licensed veterinarian. Finally, in proposed paragraph (c)(4), we would prohibit all substances on the extremities above the hoof of any Tennessee Walking Horse or racking horse entered for the purpose of being shown or exhibited, sold, auctioned, or offered for sale in or on the grounds of any horse show, horse exhibition, or horse sale or auction. Explanations for each of these prohibitions is provided below.

In prior rulemakings, APHIS has received a range of comments from members of the gaited horse industry, veterinary professional organizations, animal advocates, and the general public regarding the purposes and effects of such devices, and whether there are minimum weights below which such devices will not cause lesions that constitute soring. Our experience with enforcing the Act indicates that soring can be induced when action devices are used alone or in combination with prohibited substances. We welcome public comment, supported with scientific data or other rigorous evidence, on the effects of action devices used alone or in combination with other training methods.

Pads, Toe Extensions

Section 11.2(b)(8) of the current regulations prohibits pads or other devices on yearling horses (horses up to 2 years old) that elevate or change the angle of such horses' hooves in excess of 1 inch at the heel. Altering the angulation of a horse's feet and legs can cause painful lameness, soreness, and inflammation by transferring concussive impact and weight-bearing pressures to joints and other parts of the horse not normally subjected to these forces. Elevating the foot using stacked hoof pads, or “performance packages,” can also cause an increase in tension in the tendons leading to inflammation, as can extra weight on the horse's foot. Additionally, elevating only the front feet, as is typically done in Tennessee Walking Horse and racking horse performance-class competitions using pads, “causes an unnatural angulation of the back and body of the horse, and changes the alignment of the shoulder muscles, the vertebrae, and the pelvis, all of which are then subject to stress, irritation, and inflammation.” (See 53 FR 14780 (April 26, 1988)).

Research undertaken in the above-cited Auburn study indicated that raising a horse's heels through the use of pads alone resulted in swollen flexor tendons and signs of inflammation. The same study also found the ability to detect pressure soring (
i.e.,
the illegal application or use of bolts, screws, blocks, hoof packing material, and other methods of pressure) through visual and physical inspection of the soles of horses' hooves is limited because pads obscure the solar surface of the foot.

Under proposed § 11.6(c)(3), we would prohibit all pads and wedges on any Tennessee Walking Horse or racking horse at any horse show, exhibition, sale, or auction, unless the horse has been prescribed and is receiving therapeutic treatment involving the use of pads or wedges as approved in writing by a licensed veterinarian. APHIS' experience at Tennessee Walking Horse and racking horse events indicates that soring continues to occur through the use of performance packages that can introduce unnatural angulations of the foot or hide signs of pressure shoeing. However, we would not have this specific provision become effective until 270 days after promulgation of a final rule, as it takes approximately 6 to 8 months for a padded horse to become acclimated to being flat-shod (
i.e.,
walking and performing without pads).

We invite comments on whether this is an appropriate timeframe for transitioning to a prohibition on pads, but underscore that this prohibition is necessary in order for APHIS to enforce the provisions of the Act. APHIS inspection data shows that of the alleged HPA violations documented at events from FY 2017 through 2021, 94 percent involved horses wearing pads.
32

This is not to imply that pads were directly responsible for soring these horses. Rather, the performance classes in which soring confers the greatest benefit (an unnatural high-stepping gait) require that the horse wear pads.

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

In proposed § 11.6(b)(9) and (13), we would continue to allow the restricted use of pads at shows without Tennessee Walking Horses and racking horses, provided that the pads or other devices on horses up to 2 years old that elevate or change the angle of such horses' hooves are not in excess of 1 inch at the heel, and would also continue to allow the use of pads made of leather, plastic, or a similar pliant material.

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

Substances

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

Numerous substances are used on horses at shows, exhibitions, and sales events for legitimate purposes, among them shampoos, polishes, conditioners, oils, and insect repellents, as well as lubricants that allow action devices to slide on the leg with less friction. For this reason, the specific prohibitions in current § 11.2(b) do not include substances. However, as we mentioned above, at Tennessee Walking horse and racking horse events, we have observed from our experience enforcing the regulations (including through compliance inspections, investigations, enforcement actions, and industry oversight and outreach) that chains, rollers, and similar devices are sometimes used with caustic substances to induce painful lesions and inflammation. Other prohibited substances sometimes detected on horses include masking and numbing agents that temporarily block the pain of soring so inspectors cannot detect pain upon inspection. Specifically, local anesthetic agents such as benzocaine and lidocaine are used to deter detection of soring upon evaluation, as well as dyes and paints to cover evidence of soring.

Even lotions such as skin softeners and conditioners are implicated in soring at Tennessee Walking horse and racking horse events. While these substances do not directly cause soring, their intended use is to diminish the effects of soring. Such substances are used so that when soring is induced, the skin is softer and does not react as badly, thus decreasing the chance of inflammation and a subsequent scar rule violation.

Current § 11.2(c) prohibits all substances on the extremities above the hoof of any Tennessee Walking Horse or racking horse while being shown, exhibited, or offered for sale at any covered event, except lubricants such as glycerin, petrolatum, and mineral oil, or mixtures of these. Moreover, these lubricants must be furnished by event management and can only be applied after inspection.

However, data collected by APHIS from 2017 through 2022
33

indicates that, in each of those years, substantial numbers of horses tested by APHIS were positive for prohibited substances, with nearly all of them being Tennessee Walking horses and racking horses. In FY 2018, among horses that wore performance packages (action devices and pads), 144 horses were positive out of 194 tested, and over the 6-year period the average rate of positives was more than 40 percent.
34

Furthermore, during this 6-year period, masking and numbing agents constituted about 36 percent of the prohibited substances detected on all horses tested. Of the horses testing positive for prohibited substances, about 90 percent wore performance packages while being shown or exhibited in performance classes. The data from this period shows that the Tennessee Walking Horse and racking horse communities continue to use prohibited substances to induce, hide, or mask soring despite the current ban.

33
HIO collected samples are included in FY 2020 through FY 2022 data and were funded by APHIS.

34
See Table 3 presented above in the section “Evaluation of the Horse Protection Program.”

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

Stewarding

In proposed new paragraph (b)(21), we would prohibit stewarding of any breed of horse during inspection for soreness. Stewarding involves the use of whips, cigarette smoke, or other threatening actions or paraphernalia to distract a horse from feeling leg pain when palpated during inspection or to otherwise impede the inspection process.

We would also prohibit holding of reins less than approximately 18 inches from the bit shank. The earlier-cited NAS study committee's observation of 61 inspection videos revealed numerous incidents of stewarding during the standing inspection that were not dealt with by the inspector, including holding the reins closer than 18 inches from the bit, often just below or on the shank. In some cases, the committee observed that the horse was restrained with constant tension, often with the reins held in an upward direction, or the reins were pulled sharply. The committee noted that these restraint tactics can create a distraction during the palpation procedure by inducing pain in the oral cavity.
35

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

Dermatologic Changes and the Scar Rule

Under current § 11.3 of the regulations, all horses
36

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

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

Paragraph (b) of the scar rule states that “the posterior surfaces of the pasterns (flexor surface), including the sulcus or `pocket' may show bilateral areas of uniformly thickened epithelial tissue if such areas are free of proliferating granuloma tissue, irritation, moisture, edema, or other evidence of inflammation.”

In paragraph (a)(2) of § 11.21, the requirements for inspection of horses by DQPs include an examination to determine whether the horse meets the scar rule criteria. Paragraph (a)(2) states that “[w]hile carrying out the procedures set forth in this paragraph, the DQP shall also inspect the horse to determine whether the provisions of § 11.3 of this part are being complied with, and particularly whether there is any evidence of inflammation, edema, or proliferating granuloma tissue.”

The scar rule is not a part of the Horse Protection Act. In its current form, the scar rule was proposed in 1978 and added to the regulations in 1979.
37

According to the 1978 proposal, the scar rule was initially developed in 1974 by representatives of the horse industry and the Department as part of the industry's self-policing program against

soring.
38

The proposal notes that as a result of that program, a distinction between the types of scars found on younger and older horses gradually emerged; younger horses “do not bear the scars, granulomas, and callouses indicative of soring that are often found on older horses.”
39

The Department therefore stated in the proposal that it “believes it will benefit all concerned parties by adopting and enforcing a national uniform criteria for applying the `scar rule'.”
40

37
The proposal was published in the
Federal Register
on April 28, 1978 (43 FR 18514-18531) and the final rule was published on April 27, 1979 (44 FR 25172-25184) .

38

See also In Re: F. Dale Rowland & Denise Rowland., 52 Agric. Dec. 1103, 1126 (U.S.D.A. Aug. 25, 1993)
(citing Horse Protection Enforcement, 1979: Annual Report of the Secretary of Agriculture to the President of the United States Senate and the Speaker of the House of Representatives (July 1980) at 4).

39
43 FR 18514-18531, page 18519.

40

Idem.

The Department added that the scar rule it was proposing would allow for normal changes in the skin due to friction and permit thickening of the epithelial layer of the skin in the pastern area, comparing it to “a callous on a workman's hands,” and would also allow for moderate loss of hair on the pastern caused by the friction caused by an action device.
41

Notably, the proposal emphasized that the scar rule must be applied bilaterally and that the scarring must be identical on both legs, so that horses bearing scars from accidental injury to one leg are not unfairly penalized as being sore, being that “[t]he chances are extremely remote that any horse would ever injure both forelegs in an identical manner with resulting identical scars in the anterior or posterior pastern area of each foreleg.”
42

41

Idem.

42

Idem.

In 2001, APHIS issued a guide
43

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

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

The 2001 guide indicates that APHIS' understanding of scarring had evolved since 1978, such that the Agency now understood that a horse need not bear identical scars on both pasterns in order to be bilaterally scarred. Its issuance also indicates that APHIS believed guidance was warranted at the time to ensure that inspections for violations of the scar rule were correctly and uniformly conducted.

Despite the issuance of the 2001 guide, and the development of subsequent training that supplanted the guide, the scar rule itself remains unchanged in practice from its inclusion in the regulations 44 years ago. Since that time, however, advances in veterinary science as well as technical innovations in imaging and diagnostics have improved our understanding of how soring occurs and our ability to detect it. (As the NAS study notes, even the term “scar rule” has become something of a misnomer, with the obvious bilateral soring lesions and scars seen prior to passage of the Act in 1970 only rarely observed today.)

However, as technical advancements during the intervening period have improved our ability to detect soring, so too have technical advancements improved violators' ability to evade detection of scarring during inspections. APHIS, veterinary organizations, and the horse industry continue to see violators developing new ways to obscure the gross dermatologic indicia of soring, leaving little or no visible lesions on the leg and making it difficult to disqualify a horse under the scar rule as currently written. Violators, for example, have used lasers to smooth out irregularly thickened skin or evidence of chronic inflammation on one pastern of a horse that has been sored bilaterally, leaving only one leg with obvious signs of soring (unilateral), thus allowing the horse to avoid being disqualified under the current bilateral requirement of the scar rule. Requiring that lesions be bilateral in order for a horse to be considered sore under the scar rule has made it less effective against the innovations devised to evade it. In short, it is now clear to the Agency that a horse need not gross dermatologic indicia of soring bilaterally in order for the horse to be sore.

Further, although the existing scar rule specifies regions on the limb (extensor and flexor surfaces, sulcus) on which the scarring must occur for a violation of the scar rule to occur, as the issuance of the 2001 guide illustrates, the boundaries of the regions may not always be clearly and uniformly understood in the absence of guidance. Moreover, an abnormality indicative of soring is not enforceable as a scar rule violation if it appears outside these regions.

The NAS study also found the term “granuloma

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-17814. Public record. Not legal advice.