# Horse Protection Amendments

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-09469

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** May 8, 2024
- **Citation:** 89 FR 39194

## Text

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

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Final rule.

SUMMARY:

We are amending the horse protection regulations to provide that the Animal and Plant Health Inspection Service will screen, train, and authorize qualified persons for appointment by the management of any horse show, horse exhibition, or horse sale or auction to detect and diagnose soring at such events for the purposes of enforcing the Horse Protection Act. These and other regulatory amendments will strengthen the Agency's efforts to protect horses from the cruel and inhumane practice of soring as the Act requires and by so doing eliminate unfair competition.

DATES:

This rule is effective on February 1, 2025, except for § 11.19, which is effective June 7, 2024.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Background

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

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

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

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

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

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

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

(D) Any other substance or device
1

has been used by a person on any limb of a horse or a person has engaged in a practice involving a horse, and, as a result of such application, infliction, injection, use, or practice, such horse suffers, or can reasonably be expected to suffer, physical pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving, except that such term does not include such an application, infliction, injection, use, or practice in connection with the therapeutic treatment of a horse by or under the supervision of a person licensed to practice veterinary medicine in the State in which such treatment was given.”

1
We interpret “device” to include chains, which are commonly placed on the limbs of Performance division Tennessee Walking Horses and racking horses when competing in shows. The association of chains with devices has been included in the regulations since 1979: “General Prohibitions” (§ 11.2(a)) states that, notwithstanding the provisions of paragraph (b), “. . . no chain, boot, roller, collar, action device,
nor any other device
. . . shall be used. . . .” [our emphasis].

Soring has been used almost exclusively in the training of certain Tennessee Walking Horses and racking horses
2

to induce pain, resulting in an exaggerated gait that is valued in the show ring. However, the HPA's prohibition against sored horses participating in shows, exhibitions, sales, and auctions extends to events involving all horse breeds.
3

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

2
The racking horse is a breed derived from the Tennessee Walking Horse. It has a smooth, natural gait known as the “rack,” a four-beat gait with only one foot striking the ground at a time.

3
Records of non-compliance with the HPA's soring prohibition is rare in breeds other than the Tennessee Walking Horse and racking horse. APHIS nonetheless conducts occasional inspections and investigates other breed activity, and keeps records of any such noncompliance.

Background of HPA Regulations

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

After Congress passed the HPA in 1970, APHIS established regulations to enforce the Act, including restrictions on the use of certain equipment, devices, and substances. In accordance with the Act, the regulations also include inspection provisions for detecting soring in horses at shows, exhibitions, sales, and auctions. In 1976, Congress amended the Act
4

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

4
Public Law 94-360, section 3, July 13, 1976, 90 Stat. 915;
https://www.govinfo.gov/content/pkg/STATUTE-90/pdf/STATUTE-90-Pg915.pdf.

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

programs to train and license DQPs. Prior to this final rule, these training and licensing programs were administered by Horse Industry Organizations, or HIOs.

HIOs have historically filled several roles, both unregulated and regulated, for horse shows, exhibitions, sales, and auctions. For example, event management sometimes retains an HIO to assist with activities not regulated under the Act, such as registering participants and coordinating event logistics, supplying show judges, and promoting events.
5

Regulated HIO activities, in addition to training and licensing DQPs, included reporting disciplinary actions against exhibitors, event management, and DQPs to APHIS. Under the previous regulatory regime, an HIO seeking certification to train and license DQPs was required to submit to APHIS a formal request in writing for certification of its DQP program and a detailed outline of the program.

5
HIOs may continue conducting such unregulated activities under the new regulatory scheme.

Under the Horse Protection program prior to promulgation of this final rule, DQPs were the primary party responsible for inspecting and diagnosing soreness in horses participating in horse shows, exhibitions, auctions, or sales. A DQP was a qualified person who, under the provisions of 15 U.S.C 1823(c) cited above, could be appointed by management of a horse show or sale to detect horses that are sored, and to otherwise conduct inspections for the purpose of enforcing the Act. DQPs were reimbursed for services directly by event management or by an HIO contracting with the DQPs to provide inspections for events. DQPs were required to have equine experience and meet professional qualifications as set forth in the regulations.

DQP candidates also had to successfully complete a formal training program developed and delivered by the HIO before they could be licensed, except that veterinarians already accredited by USDA were able to be licensed as DQPs without having to participate in formal training. Such veterinarians also had to be either a member of the American Association of Equine Practitioners, or a large animal practitioner with substantial equine experience, or be, based on the HIO's judgment, otherwise knowledgeable of equine lameness as related to soring and soring practices. The regulations provided that veterinarians having such knowledge might include those with a small animal practice who own, train, judge, or show horses, or who are Doctors of Veterinary Medicine who teach equine-related subjects in an accredited college or school of veterinary medicine.

Alternatively, DQPs were able to be farriers, horse trainers, and other knowledgeable individuals whose past experience and training would, in the HIO's judgment, qualify them for positions as HIO stewards or judges (or their equivalent), provided that they were trained and licensed by an HIO or association whose DQP program was certified by APHIS.

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

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

As we explained in the proposal on which this final rule is based, this rule replaces a final rule that was filed for public inspection on the
Federal Register
website, in advance of official publication, on January 19, 2017. However, the incoming Administration at that time ordered this and other rules pending publication to be withdrawn, which USDA accordingly did. As the result of a lawsuit claiming that the rule had actually been promulgated and that USDA had withdrawn the 2017 final rule without proper notice and comment as required under the Administrative Procedure Act, a notice of proposed rulemaking to withdraw the 2017 final rule legally was published in the
Federal Register
on July 21, 2023 (88 FR 47068-47071, Docket No. APHIS-2011-0009), and finalized on October 31, 2023 (88 FR 74336-74341, Docket No. APHIS-2011-0009). This current rule incorporates provisions included in the 2017 HPA final rule to eliminate soring, including replacing DQPs with APHIS-authorized inspectors and banning pads and action devices on Tennessee Walking Horses and racking horses, the only two breeds in which APHIS currently finds elevated levels of soring.

Evaluations of the Horse Protection Program

Since 2009, multiple evaluations have been conducted outside the Agency to determine program efficacy. In September 2010, USDA's Office of the Inspector General (OIG) formally evaluated APHIS' oversight of the Horse Protection program
6

in accordance with generally accepted government auditing standards.
7

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

6
USDA-OIG, Administration of the Horse Protection Program and the Slaughter Horse Transport Program Audit Report, 33601-2-KC, September 2010. The document is available on the
Regulations.gov
website (see under
ADDRESSES
in this document for a link to Regulations.gov).

7

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.

USDA-OIG's findings regarding the persistence of soring are consistent with those of the USDA's Office of the Judicial Officer (OJO), which issues final decisions on behalf of the Secretary of Agriculture for purposes of judicial review. The Secretary of Agriculture, through the OJO, has found that DQP inspections of horses are less probative than inspections conducted by APHIS VMOs. Decisions issued by the OJO include accounts of exhibitors showing sored horses that had been inspected and cleared by DQPs, cursory inspections or use of incorrect methods by DQPs, and exhibitors attempting to avoid violations by having another person acknowledge responsibility.

In addition, a 2021 study
8

by the National Academy of Sciences (NAS) analyzed the causes of soring and its diagnosis in light of the current regulations. This is the most recent available study on this subject. The NAS study concurs with the USDA-OIG audit report's recommendation that a regulatory change to the inspection component of the Horse Protection program is necessary to eliminate the conflicts of interest that encourage soring. The NAS committee authoring the study examined the inspection process, which included a review of 61

inspection videos provided by APHIS and by HIOs that revealed numerous instances of inadequate performance by DQPs.
9

The NAS committee strongly recommended that the use of DQPs for inspections under the current regulations be discontinued and that only veterinarians, preferably with equine experience, be allowed to examine horses, as is done in other equine competitions. The committee added that if APHIS continues to use third-party inspectors, they should be limited to veterinarians or other equine industry professionals who are screened for potential industry conflicts of interest and trained by APHIS to properly inspect horses for soring. The committee also stated that consequences for performing substandard examinations should be strictly enforced, and that reports of substandard performance and enforcement warning letters should come from APHIS, not from HIOs.

8
National Academies of Sciences, Engineering, and Medicine:
A Review of Methods for Detecting Soreness in Horses
(2021),
https://nap.nationalacademies.org/catalog/25949/a-review-of-methods-for-detecting-soreness-in-horses.

9
NAS study, page 30.

These evaluations, which were, again, external to APHIS, also correspond to evaluations of program efficacy that APHIS conducts as part of ongoing evaluation of its Horse Protection program. Inspection data compiled by APHIS from fiscal years (FY) 2017 to 2022 demonstrated that inconsistencies persisted in the number of violations detected by APHIS officials and those issued by DQPs inspecting horses. During this period, APHIS attended about 16 percent of all HPA-covered events featuring Tennessee Walking Horses, racking horses, and other breeds at which horse industry DQPs conducted inspections. These inspections were conducted on horses competing in the Performance (“padded”) division as well as the flat-shod division. While APHIS attended only a fraction of the events at which DQPs were appointed to inspect horses, APHIS consistently reported much higher rates of noncompliance at these events based on its VMO inspection findings when compared to DQP findings. Moreover, virtually all noncompliances were found in padded horses competing in the Performance division.

Proposed Rule

In light of the foregoing evaluations, on August 21, 2023, we published in the
Federal Register
(88 FR 56924-56962, Docket No. APHIS-2022-0004) a proposal
10

to amend the Horse Protection regulations. Substantive changes we proposed to make in part 11 included:

10
To view the proposal, supporting documents, and the comments we received, go to
www.regulations.gov
and enter APHIS-2022-0004 in the Search field.

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

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

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

• Prohibiting all action devices, artificial extension of toe length, pads, wedges, and lubricants
11

on the limbs or feet of Tennessee Walking Horses and racking horses (with exceptions for approved therapeutic uses of artificial extension of toe length, pads, wedges, and substances). An action device is any boot, collar, chain, roller, beads, bangles, or other device which encircles or is placed upon the lower extremity of the leg of a horse in such a manner that it can either rotate around the leg, or slide up and down the leg so as to cause friction, or which can strike the hoof, coronet band, or fetlock joint. We proposed to afford the industry 270 days from the effective date of the final rule before the prohibition on pads and wedges, and artificial toe extensions, would be effective.

11
All other substances are already prohibited on the on the extremities above the hoof of any Tennessee Walking Horse or racking horse while being shown, exhibited, or offered for sale at any horse show, horse exhibition, or horse sale or auction.

• Replacing the “scar rule”
12

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

12
In place of this term, we prefer to use “Dermatologic conditions indicative of soring (DCIS),” although we still use “scar rule” in this document when referring to the current regulations or when a commenter refers to it as such.

• 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. We stated that 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 at least 90 days of any horse allowed to show under therapeutic treatment, informing APHIS and reporting event information at least 30 days in advance of the event, and notifying APHIS of changes to event information at least 15 days in advance of the event. These requirements were intended to prevent disqualified persons and horses from participating in HPA-covered events and to give APHIS sufficient time to schedule an APHIS representative to inspect at the event, if requested.

Discussion of Comments

We solicited comments concerning our proposal for 60 days ending October 20, 2023. We received 8,787 comments on the proposed rule through submissions received via regulations.gov, email, and U.S. mail. Comments received by APHIS via email and U.S. mail were copied into regulations.gov. We conducted a thorough and unbiased review of all comments, the majority of which consisted of variations on a single form letter supporting the rule submitted by over 7,000 persons, as well as a form letter submitted by an organization supporting the rule with 107, 257 signatories listed. Variations of other form letters generally opposing or supporting the proposed rule were submitted by smaller groups of commenters. Other comments were from: State and Federal elected officials, including U.S. Senators and Representatives; State agricultural agencies and farm bureaus; gaited horse breeder organizations, trotting horse federations and organizations, and other

domestic and foreign horse industry organizations; equine veterinarians and veterinary associations; horse rescue and animal welfare advocacy organizations; horse owners, trainers, and exhibitors; and saddle clubs, farriers, cattle grower associations, small business owners, and other interested persons. We address the issues the commenters raised in the order that they appear in the regulatory text of the proposed rule.

Based on the comments received, we are finalizing the proposed rule, including these significant modifications:

• We have revised proposed § 11.5, so that it provides for appeal of a disqualification rather than appeal of an inspection report.

• We have elected not to finalize the proposed 270-day implementation period for phasing out pads, wedges, and artificial toe extensions on Tennessee Walking Horses and racking horses as provided for in § 11.6(c).

• We have elected not to provide management of a covered horse show, exhibition, sale, or auction with the option of requesting a variance at least 15 days before an event if no APHIS representative or HPI is available. This requirement was in proposed § 11.16(a)(6).

• We have elected not to require that veterinarians be licensed as a qualification for authorization as an HPI. This requirement was in proposed § 11.19(a)(1).

• We have revised the language of our proposed description of dermatological conditions indicative of soring by making the list of conditions illustrative, rather than requiring that the presence of any one condition must result in a diagnosis of soring. We made this revision and moved this provision to revised § 11.7.

We explain why we made each of these changes to the proposed regulations under the relevant section below. Our responses to economic issues and questions received from commenters are included in the economic analysis summarized in this final rule and available as a supporting document on regulations.gov (see footnote 10).

Comments on Supporting Data in the Proposal

We included in the proposal two tables showing inspection data for HPA-covered events from fiscal years (FY) 2017 through 2022. Table 1 presents Performance division horse inspection data for HPA-covered events from FY 2017 to FY 2022. Table 2 presents flat-shod horse inspection data for HPA-covered events from the same period. Each table shows, by year, the number of horses inspected by DQPs at events where APHIS officials were not present, the number of noncompliance violations the DQPs found, and the rate of noncompliance (number of horses inspected divided by the number of violations found). Each table also shows the number of horses inspected by DQPs at events where APHIS officials were present, the number of noncompliance violations the DQPs found in the presence of APHIS officials, and the rate of noncompliance. Finally, each table shows the number of horses inspected by APHIS officials at these events, the number of noncompliance violations they found, and the rates of noncompliance.

The noncompliance rates detected by DQPs when APHIS is present and when APHIS is not present are calculated using the same method, by using the number of noncompliances detected by DQPs and the number of horse entries inspected by DQPs. We cited this data in the proposal to highlight the differences between noncompliances detected by DQPs when APHIS officials are present to observe DQP inspections and when APHIS officials are not present. These differences, in our view, are significant in that they suggest that in the absence of APHIS officials checking their work, DQPs are passing horses during inspections that they likely know would not pass if checked by an APHIS official. We therefore can only conclude that some DQPs are unwilling to correctly palpate and, therefore, make a proper diagnosis of the horses they inspect. As a result, the current DQP system is not contributing to the goal of eliminating soring in Tennessee Walking Horses and racking horses, particularly those that show as Performance division horses in pads and action devices. To underscore this point, the table data for flat-shod horses shows dramatically lower rates of noncompliance in APHIS' inspections of horses, although a smaller discrepancy in rates of noncompliance remains when DQPs are inspecting horses when APHIS VMOs are present and when they are not.

Several commenters stated that the noncompliance data we included in tables 1 and 2 is incomplete, misleading, and based on a subjective inspection protocol that renders any conclusions APHIS draws from the data as being unreliable. One such commenter noted that the data reproduced in the tables in the proposal does not match up with activity reports publicly available on APHIS's Horse Protection program website. The commenter noted that the proposed rule indicates that USDA inspectors detected a total of 323 instances of noncompliance in FY 2022, but that the activity report for that year shows only 117 instances. The commenter stated that USDA needs to explain the discrepancy, as it calls into question the higher rates of noncompliance at these events based on the APHIS VMO inspection findings.

The commenter is comparing data sets from two report types that are not commensurable. The fiscal year activity report that the commenter found online
13

only includes noncompliance data reported by APHIS VMOs to management of the regulated event for possible disqualification. The report does not include instances of noncompliance that were observed by an APHIS VMO and referred to a DQP for appropriate follow-up inspection or remedial action. Those instances, which often result in actions taken by the DQPs themselves, are not part of the activity report, but were part of the data sets in tables 1 and 2 of the proposed rule. The fiscal year activity report also does not include instances of noncompliance that were observed by a DQP during inspection but reported by the DQP directly to management. In sum, the data in tables 1 and 2 of the proposed rule provide a more accurate depiction of the rate of noncompliance than the activity reports, which show a more limited range of noncompliance data.

13
APHIS Horse Protection Program FY 2022 Activity Report:
https://www.aphis.usda.gov/animal_welfare/downloads/hp/fy2022-horse-program-activity-report.pdf.

We included the tables in the proposed rule to show that DQPs were far more likely to identify noncompliance of any sort when APHIS VMOs were also present and observing at the event.

The commenter also stated that the data in the proposed rule showing higher rates of soring detected by VMOs is invalid because it was not based on a random sample of horses inspected. As a result, the USDA's data purportedly showing higher rates of noncompliance detected by USDA inspectors cannot properly be treated as showing the violation rate at Tennessee Walking Horse events because it is based on inspections of a subset of horses that were singled out in advance as being suspected of soring.

As the commenter indicated, we indeed acknowledged in the proposed rule that many horses selected by VMOs for inspection “are more likely to be diagnosed [as sore], as that sample

presented indications of soring prior to inspection.” We have never claimed that inspections of horses for soring are randomized, although we also inspect horses showing no indications of soring. The data is not restricted to a random sample because APHIS does not operate in an environment in which a fully random sampling is warranted, or, indeed, possible.

After 50 years of enforcing the HPA, APHIS has amassed an aggregate body of data indicating the Tennessee Walking Horse and racking horse industry is disproportionately likely to sore their horses, and DQPs in the industry are disproportionately unlikely to detect the soring. This is true regardless of the year in question, the number of inspections conducted, or other controls applied. For example, in 2023, APHIS VMOs conducted significantly more inspections than in 2022; yet the rate of soring detected remained almost identical. Our inspection efforts under the HPA thus properly focus on those industries that present a much higher risk of soring their horses based on prior experience over the past 50 years.

It is also worth noting, as we did in the proposed rule, that both USDA-OIG and the NAS study committee reached similar conclusions regarding the Tennessee Walking Horse and racking horse industry, and that the NAS study was jointly requested not only by APHIS, but also by the Tennessee Department of Agriculture and the Tennessee Walking Horse Breeders Foundation.

Further, the commenter stated that the data cited in tables 1 and 2 of the proposal is misleading because it reflects rates for all HPA noncompliance violations, not just soring violations. The commenter added that by failing to distinguish between violations that do and do not involve soring, USDA overinflates the data that supposedly shows soring violations, and that the actual rate of soring is likely even lower than that reported.

The commenter is correct that the data cited in the proposal includes HPA noncompliances that are not categorized as “sore” noncompliances. However, we disagree that the tables were misleading. The proposed rule did not purport to indicate that tables 1 and 2 contained only instances of noncompliance indicative of soring. Again, the articulated purpose of tables 1 and 2 in the proposed rule was to show that there are still higher rates of soring, insofar as DQPs were much more likely to identify all types of noncompliance, both actual soring and otherwise, when APHIS VMOs were also present at the event. And, in fact, the majority of these noncompliances across all years in the data chart were indeed categorized as “sore.” Aside from a slight decrease in FY2019, the percentage of noncompliances categorized as “sore” continued to increase year after year, as the following table shows:

Table 1—Numbers of Sore and Other Noncompliances Detected by APHIS, FY2018-FY2023 *

FY18
FY19
FY20
FY21
FY22
FY23

Number of Sore Noncompliances APHIS Detected
78
180
61
122
257
525

Number of Other HPA Noncompliances APHIS Detected
27
69
19
37
66
96

Total Number of HPA Noncompliances APHIS Detected
105
249
80
159
323
621

Percentage Involving Sore Noncompliance
74%
72%
76%
77%
80%
85%

* This table combines noncompliances of both Performance and flat-shod horses. Not included are noncompliances detected by APHIS at events where DQPs were not present.

Table 2—Overall Noncompliance Rates Detected by APHIS, FY2018-FY2023 *

FY18
FY19
FY20
FY21
FY22
FY23

Number of Entries Inspected by APHIS
1,556
1,198
326
541
1,287
2,740

Number of Sore Noncompliances APHIS Detected
78
180
61
122
257
525

Noncompliance Rate Detected by APHIS Involving Sore Noncompliances (%)
5%
15%
19%
23%
20%
19%

Number of Other HPA Noncompliances APHIS Detected
27
69
19
37
66
96

Noncompliance Rate Detected by APHIS Involving Other HPA Noncompliances (%)
2%
6%
6%
7%
5%
4%

* This table combines noncompliances of both performance and flat-shod horses. Not included are noncompliances detected by APHIS at events where DQPs were not present.

The same commenter claimed that the data on noncompliances reported by APHIS resulted from a subjective inspection process that has been shown to be incapable of producing reproducible results. The commenter stated that USDA implemented a requirement in late 2016 that a horse found in violation of the HPA by a VMO must be re-inspected by a second VMO, if present. USDA removed that requirement in 2021 because we concluded that a single VMO's finding of soring was reliably accurate without the need for additional confirmation. The commenter stated, however, that when the second inspection rule was in use between 2017 and 2021, the number of violations dropped significantly whenever two VMO inspectors had to agree on a finding of a violation. The commenter concluded, therefore, that the number of violations APHIS reported in the tables in FY 2017, FY 2021, and FY 2022 is likely lower than what is reported.

The fact that APHIS VMOs occasionally reach different conclusions about whether a horse is sore does not categorically invalidate the ability or the reasoned judgment of a trained inspector with respect to detecting and diagnosing soreness in horses. The protocol referred to by the commenter required APHIS VMOs to make exactly the same findings in order to document a violation, and, as the NAS study stated, “[t]he requirement that two VMOs must make exactly the same findings (
i.e.,
sensitive on the lateral pastern but not bulbs of heels or medial pastern) does not consider changes that may occur over time between examinations, how the horse may respond to repeated palpation, or how the presence of foreign substances either parenterally or topically may influence findings over time.”
14

Further, the NAS study noted that “[d]istractions and stressors can inhibit a horse's sensitivity to and expression of pain, such that detection of soreness would be missed, or a horse's reaction to distractions could be incorrectly attributed to pain. Moreover, when more than one

inspector examines the horse, its behavior may differ between the two inspections if the number and type of distractions and stressors at that location and time also differ.”
15

14
NAS study, Conclusion 2-5, page 34.

15
Ibid., Conclusion 3-1, page 52.

While we agree with the commenter that inspection does often entail a professional's judgment that observable symptoms are indicative of soring, we disagree with the commenter's characterization of the inspection process as subjective and incapable of producing reproducible results. The NAS study describes the current process APHIS uses for detecting soreness, which involves informed observation of the horse's movement and posture and palpation of the limbs, as “the gold standard for detecting local pain and inflammation. These examination methods are known to be valid and reliable when performed by veterinarians who are trained and highly experienced in detecting lameness and pain. They are employed to detect lameness, injury, and pain in all breeds of horses that are used in competitions, shows, recreational riding, work, breeding, and teaching.”
16

16
Ibid., Finding 2-2, page 33.

The same commenter also stated that the NAS study recognizes and supports their position that USDA's current inspection protocol is predominantly subjective and does not yield reproducible and consistent results. As evidence, the commenter stated that USDA's own inspectors cannot agree on whether an individual horse is sore. The commenter cited inspection data from one horse event in 2016, which showed that when two different USDA officials inspected the same horses, they could not agree on the same conclusion up to 52 percent of the time. Based on this discrepancy, the commenter stated that APHIS can draw no valid conclusions that Agency inspectors generally find a higher rate of violations and cannot use data obtained from that inspection protocol as evidence that soring persists.

The commenter's characterization of the NAS study distorts its content. The study did not suggest that the current inspection protocol is incapable of detecting soring; to the contrary, as noted above, it considered the current practice for detecting soreness to be the “gold standard” for doing so. NAS also found, however, that APHIS' inspection protocol was actually overly prescriptive. At the time of the NAS study, a second VMO was required to inspect a horse if the first VMO initially found it to be bilaterally sore and, to warrant a finding of soring and disqualification, “the second inspection must be exactly the same as to the area of apparent pain and the type of response given by the horse as well as findings of skin changes indicative of previous injury.”
17

Thus, even if the second VMO also found the horse to be sore, any difference between the first and second inspections, however minor, could invalidate the finding. The NAS study noted that “[f]ailure by a VMO to adhere to such a prescriptive protocol could “allow for possible objections to the VMO's finding by the horse custodian,” adding that “inspection by a second VMO may cast doubt on the ability of VMOs to detect pain or other abnormalities and may negatively affect the VMO's ability to make appropriate judgments.”
18

The study recommended that properly qualified and trained individuals be afforded greater latitude to make a professional judgment of soring under a less prescriptive protocol, noting that under the two-VMO protocol, a determination of soring can easily be overturned when it should not; in other words, a false negative on reinspection is more likely the outcome than is a false positive of soring.

17
J. Baker, former VMO, USDA Animal Care Horse Protection Program, personal communication, July 27, 2020; cited in NAS study, page 32.

18
NAS study, Conclusion 2-4, page 34.

With respect to the inspection data cited by the commenter from one show in 2016, the nature of the prescriptive protocol may explain why inspections by different VMOs resulted in a different finding 52 percent of the time at that show. Even so, the single show data the commenter cited is not a representative sampling, nor does it address the ability of APHIS VMOs to detect soring.

In claiming the unreliability of the USDA inspection protocol and, thus, of the data from those inspections, the commenter also referred to a research project included in the NAS study report, conducted by Dr. Paul Stromberg, that examined skin biopsies from Tennessee Walking Horses disqualified for scar rule violations. Dr. Pamela E. Ginn, a member of the NAS study committee and a board‐certified veterinary pathologist and a specialist in veterinary dermatopathology, also examined the biopsies and reviewed Dr. Stromberg's conclusions.

As this comment pertains mainly to questioning the accuracy of the scar rule, we respond to the comment under the heading “Dermatologic Conditions Indicative of Soring” below.

Another commenter, citing the same 2016 event inspection data as the commenter above, stated that APHIS is relying on different “violation” rates when APHIS officials are present and when they are not present, and that this is misleading.

We interpret the commenter to mean that it is misleading for APHIS to show that DQPs are allowing sore horses to pass inspection when not under the supervision of APHIS officials and citing the discrepancy in rates. We disagree that this is misleading because we are simply citing the results of DQP inspections under different conditions. We agree with the commenter that DQPs find more noncompliances when APHIS officials are present.

A commenter also questioned the reliability of the noncompliance data by stating it is based on citations issued by APHIS VMOs lacking equine experience. The commenter noted that the NAS study report explained that “examinations should be performed not only by a veterinarian, but by a veterinarian who has equine experience.”

We disagree that noncompliance data presented in the proposed rule should be considered unreliable because certain noncompliance was detected by individuals lacking equine experience, although if lack of experience is an issue, we note that it is DQPs, rather than APHIS VMOs, who are doing most of the inspections and are so situated currently. We note that APHIS VMOs, by virtue of being veterinarians working within the Horse Protection program, are experienced with equines and have received training in equine medicine. APHIS' training of VMOs involves practice in learning and applying medically established methods of diagnosing soring. We intend to extend a similar rigorous level of HPI training to qualified persons with equine experience under the changes we proposed to the Horse Protection program.

The commenter also stated that APHIS' inspection methods fail to account for injuries or sensitivity that may occur from “legal” activity that occurs during a show, comparing the minor sensitivity that may result from normal activity during a show to what a human athlete might feel after competing. The commenter stated that USDA unfairly disqualifies horses post-show for such sensitivity when no evidence of actual soring is found, and that USDA disregards any plausible explanations for sensitivity not resulting from soring.

We disagree with the commenter, in that any show activity considered “normal” would not result in a response to sensitivity painful enough to be confused with soring, particularly if an

inspector has the training and experience to palpate and diagnose horses accurately. To this end, we note again that palpation as practiced by APHIS VMOs was determined by the NAS study to be the “gold standard” in detecting local pain and inflammation indicative of soring, particularly when administered by a properly qualified and trained veterinarian. We also note that medical professionals such as VMOs are specifically trained in making the sort of differential diagnoses cited by the commenter based on their professional judgment. In addition, our records indicate that horses at flat-shod shows that also compete athletically almost never exhibit soreness on post-show inspection. We see no reason to discount our data on noncompliance as being unreliable or misleading for the reason the commenter claims.

The commenter also stated that the data does not support USDA's decision to treat Tennessee Walking Horses and racking horses differently from other breeds.
19

The commenter explained that USDA based its decision that Tennessee Walking Horses require special rules on the conclusion that violation rates are much higher at Tennessee Walking Horse events than at competitions with other breeds, but that the USDA provided no data showing violation rates for other breeds as comparison. The commenter added that USDA apparently does not have data for other breeds because it does not inspect those breeds the same way it inspects Tennessee Walking Horses, and concluded from this that the Agency should not place more onerous restrictions on the breed without evidence to support that action. Another commenter echoed this point, stating that other breeds have not been subject to decades of stringent subjective inspections and that they are rarely inspected by the same protocols as Tennessee Walking Horses and racking horses.

19
Related to this point, we note that in current § 11.2(c) and (d) restrictions on substances and workouts specific to Tennessee Walking Horses and racking horses have long been part of the regulations.

In the proposed rule, we provided several reasons why APHIS does not inspect other breeds for soring to the degree that we inspect Tennessee Walking Horses and racking horses. As the commenter noted, we indicated in the proposal that we base this approach on our informed knowledge and monitoring for signs of soring in other breeds and, as a means to further improve our ability to monitor the activities of other breeds, we proposed in § 11.16(a) that management of all horses covered under the Act report their events 30 days in advance. Moreover, the current regulations in § 11.2(c) and (d) and § 11.6 listing prohibitions specific to Tennessee Walking Horses and racking horses (provisions regarding substances and workouts) already treat these breeds differently, as findings of soring are highly concentrated in these breeds and infrequent in all other breeds. We also note that in the occasional inspections we conduct on other breeds, we have found only rare instances of noncompliance, and we maintain records of such noncompliances.

In the small sample of data from events attended by APHIS where other breeds were inspected, we found a very low noncompliance rate comparable to that found in flat-shod Tennessee Walking Horses and racking horses. These events included Missouri Fox Trotters, Rocky Mountain, and Spotted Saddle Horses. The average noncompliance rate detected by APHIS from FY 2017 to FY 2022 at these events was 0.8 percent, whereas the average noncompliance rate detected by APHIS for flat-shod horses across the same years was 1.9 percent. In table 1 of the proposal, during the same period, the average noncompliance rate from APHIS inspections of Tennessee Walking Horses and racking horses competing in Performance division events was 25 percent, and 34.1 percent in FY 2022 alone.

While isolated cases of soring have been reported in other horse breeds, we question the commenter's implication that only regular inspections of other horse breeds will confirm these breeds to be at lower risk of soring, as opposed to other means of knowledge gathering sufficient to establish an informed level of risk, which includes occasional inspections. We noted, for instance, that the distinctive 2-inch-high stacked pads worn by Tennessee Walking Horses and racking horses are not used at shows by any other breed. In addition, “[e]quine veterinarians on the NAS committee noted that skin changes seen on the pasterns of Tennessee Walking Horses are not observed on the pasterns of other breeds of horses (Arabians, American Saddlebreds, Morgan horses), which also train with action devices such as chains and rollers but do not wear them when shown at competitions.”
20

20
NAS study, page 81.

While all horse breeds are subject to provisions of the Act, we proposed Tennessee Walking Horse- and racking horse-specific prohibitions on certain items and practices because USDA has 50 years of data showing a documented record of soring in these breeds that simply does not exist for other breeds. On the other hand, if USDA were considering establishing new regulations in a currently unregulated community, presuming beforehand that one class of entity will be more noncompliant than other classes without evidence would be inappropriate.

Finally, soring imparts little to no advantage to competitors at other breed shows, as the gaits on which most breeds are evaluated are noticeably distinct from the exaggerated “big lick” step featured at many Tennessee Walking horses and racking horse events. While we make a distinction between Tennessee Walking Horses and racking horses and other breeds by prohibiting the use of pads, artificial extension of the toe, and action devices, we note that it is not necessarily the pad or action device in itself that can cause soring
per se,
but rather their specific application and use in training of a horse. Pads and wedges in certain forms, for instance, can actually be used in training in such a way as to cause soring. We address this issue further in the comment responses below.

Definitions

In § 1.1, we proposed adding definitions for
custodian, day(s), event manager, Horse Protection Inspector (HPI), local area, participate,
and
therapeutic treatment.

A commenter stated that a definition should be added for stewarding.

We believe that new § 11.6(b)(21) adequately defines what we consider to be stewarding. The paragraph prohibits the use of whips, cigarette smoke, or similar actions or paraphernalia to distract a horse or to otherwise impede the inspection process during an examination, including but not limited to, holding the reins less than 18 inches from the bit shank. All such actions constitute stewarding.

The same commenter stated that a definition should be added for “substances.”

In a 2016 proposed rule to revise the HPA regulations (81 FR 49112-49137, Docket No. APHIS-2011-0009), we proposed adding such a definition.
21

However, in response to comments at that time, we refrained from including it in the regulations. In brief, commenters raised questions about the regulatory status of substances having multiple uses and what constitutes a substance that should be prohibited, as

well as requests to provide a definition that covers all substances of concern.

21
To view this proposed rule, go to
https://www.regulations.gov/document/APHIS-2011-0009-0001.

As no useful definition of “substances” can encompass all their uses and abuses for the purposes of regulation, we believe the regulation is adequate and have opted not to define the term. As explained elsewhere in this document, the Act provides us with the authority to restrict or prohibit practices, including the use of substances, that can cause soring or mask evidence of it.

We proposed revising the definitions of
action device, Administrator, APHIS representative, inspection, management, person,
and
sponsoring organization.
We proposed removing the definitions for
APHIS Show Veterinarian, Designated Qualified Person or DQP, horse industry organization or association, lubricant, Regional Director,
and
show manager.
Our responses to comments received on these changes are addressed below.

We proposed no changes to, and received no substantive comments on, the definitions for
Act, Animal and Plant Health Inspection Service (APHIS), Department, exhibitor, horse, horse exhibition, horse sale or horse auction, horse show, Secretary, sore,
and
State.

We proposed revising the definition for
action device
by adding beads and bangles to the list of such devices.

One commenter recommended that we also remove the word “joint” in the definition when referring to the fetlock, adding that the fetlock includes the joint and this wording implies it may be acceptable to strike the area between the coronary band and the fetlock joint.

The term “fetlock joint” has been part of the HPA regulations since 1979 and is only included in the definition of
action device.
While we agree that the term “fetlock” includes the metacarpophalangeal and metatarsophalangeal joints, both “fetlock” and “fetlock joint” are used in scientific literature interchangeably to refer to the same region of a horse's distal limb. We are finalizing as proposed.

We proposed revising the definition for
Administrator
by adding U.S. mail and email addresses for sending mail to the Administrator of APHIS. We received no comments on this revision and are finalizing as proposed.

We proposed removing the definition for
APHIS Show Veterinarian
and revising the definition of
APHIS representative.
The current definition of
APHIS representative
is any employee of APHIS, or any officer or employee of any State agency who is authorized by the Administrator to perform inspections or any other functions authorized by the Act, including the inspection of the records of any horse show, horse exhibition, horse sale or horse auction. We proposed revising this term to read “any employee or official of APHIS,” which includes APHIS-employed veterinarians attending shows in an official capacity. APHIS representatives will include qualified full-time and intermittent VMOs employed by APHIS to inspect horses for soring. HPIs, on the other hand, will not be APHIS representatives under this definition because they are not employees of APHIS and not compensated by the Agency, but will be authorized to conduct inspections and will contract as third parties with event management for their services. We received no comments specifically addressing this change and are finalizing as proposed.

We proposed adding a definition for the term
custodian,
which we proposed to mean any person who has initial control of and who presents a horse for inspection at any horse show, horse exhibition, horse sale, or horse auction. We noted that a person acting as custodian may typically perform additional roles, such as owner, exhibitor, seller, or transporter. Also, the custodian must be able to provide required information about the horse as required in part 11.

A few commenters expressed support for the new definition but recommended that we limit the definition to “any adult person, of the age of 18 or older,” noting that children should not be allowed to present horses for inspection.

We agree with the commenter's recommendation and are modifying the definition in this final rule by adding “any adult person, age 18 or older”. If a minor were found to be in violation with the regulations, the person's status as a minor could complicate legal liability and responsibility for purposes of addressing the infraction and enforcing the Act. Custodian of a noncompliant horse is a role APHIS pursues for enforcement.

Another commenter recommended that we insert the words “and/or subsequent” after the word “initial,” as the proposed wording would not address the question of subsequent control of the horse.

Occasionally, the person who has initial control of the horse will have someone else take their place during the inspection process. That person will have to meet the same requirements as the custodian who had initial control of the horse. We agree with the commenter's recommendation and will address it by removing “initial” from the definition. By removing this word, the term accounts for any person having control of the horse at any time, initially or subsequently.

We proposed and are adding the term
day(s
) to § 1.1, and defining it to mean business days,
i.e.,
days other than weekends and Federal holidays. In several instances, the regulations require the submission of reports or records with a period of days, and we wish to clarify that weekends and Federal holidays are not included within that day count. We received no comments specifically addressing this addition and are finalizing as proposed.

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

We proposed removing the term
Designated Qualified Person or DQP
and its definition, as well as all regulatory requirements in the regulations pertaining to them. Instead, APHIS will screen, train, and authorize
Horse Protection Inspectors or HPIs
qualified to conduct inspections of horses, devices, and records for the purposes of determining compliance with the Act at horse shows, exhibitions, sales, and auctions. HPIs, preferably veterinarians, will be authorized by APHIS pursuant to proposed § 11.19 and appointed by management of the event. Accordingly, we are including a definition for
Horse Protection Inspector
in the regulations, included below. We received no comments specifically addressing this proposed action and are finalizing as proposed.

We proposed to add the term
event manager
to mean the person who has been delegated primary authority by a sponsoring organization for managing a horse show, horse exhibition, horse sale, or horse auction. An individual event manager will need to be designated even if the event is managed by a team of persons. This definition will clarify management responsibility. We received no comments specifically addressing this addition and are finalizing as proposed.

The term
horse industry organization or association
is currently defined as

“an organized group of people, having a formal structure, who are engaged in the promotion of horses through the showing, exhibiting, sale, auction, registry, or any activity which contributes to the advancement of the horse.” We proposed removing the term
horse industry organization or association
and its definition, as all regulatory requirements under the Act pertaining to these groups, including requirements for certification of DQP programs, recordkeeping, and other requirements assigned to them will no longer be included in the revised regulations.

A few commenters opposed removal of the term and removal of the role played by HIOs under the current program. One commenter stated that the change will impose significant new recordkeeping and reporting requirements, and new tasks such as crowd control, on local show managers.

We are making no changes based on these comments. We disagree with the commenter's point that the proposed regulatory changes eliminate HIOs or prevent them from working with show management. As we noted in the proposal, HIOs are free to continue supplying other services to shows and events not subject to regulation, including registering participants and coordinating event logistics, supplying show judges, and promoting events. This rulemaking does not affect their freedom to contract with event management to perform these services. The proposed removal of the term was solely to reflect the fact that they would no longer have a distinct role specifically pertaining to APHIS' Horse Protection regulations.

We proposed adding the term
Horse Protection Inspector (HPI)
to mean a person meeting the qualifications in proposed § 11.19 whom the Administrator has authorized as an HPI and who may be appointed and delegated authority by the management of any horse show, horse exhibition, horse sale or horse auction under section 4 of the Act to detect or diagnose horses which are sore or to otherwise inspect horses and any records pertaining to such horses for the purposes of detecting or diagnosing soring.

A commenter stated that we should clarify in the definition that HPIs are not APHIS representatives.

We agree, and will clarify the definition we proposed by adding a sentence stating that “HPIs are not employees of APHIS.”

The current regulations define
inspection
to mean “the examination of any horse and any records pertaining to any horse by use of whatever means are deemed appropriate and necessary for the purpose of determining compliance with the Act and regulations. Such inspection may include, but is not limited to, visual examination of a horse and records, actual physical examination of a horse including touching, rubbing, palpating and observation of vital signs, and the use of any diagnostic device or instrument, and may require the removal of any shoe, pad, action device, or any other equipment, substance or paraphernalia from the horse when deemed necessary by the person conducting such inspection.”

To emphasize that any means of determining compliance with the Act and regulations must be approved by APHIS, we proposed revising the definition of
inspection
to include the words “any visual, physical, and diagnostic means approved by APHIS to determine compliance with the Act and regulations,” with some illustrative examples. While we received comments on what inspections should include and address them elsewhere in this document, we received no comments on the definition itself and are finalizing as proposed.

We proposed adding a definition for
local area,
which we define as the area within a 10-mile radius of the horse show, horse exhibition, horse sale, or horse auction. This term will be added in conjunction with § 11.13(b)(3), which requires event management to have a farrier on call within the local area if requested by an APHIS representative or HPI appointed by management and 100 or fewer horses are entered in the horse show, exhibition, sale, or auction. When over 100 horses are entered in an event, management will be required to have a farrier onsite unless they elect to enforce the HPA without recourse to an inspector.

A commenter disagreed with the proposed definition of
local area
and advised a 30-mile radius to compromise the local area, while another commenter suggested it be increased to greater than 40 miles.

We are finalizing as proposed. A farrier may be required to provide services to assist an APHIS representative or HPI in conducting an inspection, such as removing a shoe. A 10-mile radius allows the on-call farrier to be close enough to arrive at a show promptly if so requested by an APHIS representative or HPI. This, in turn, forestalls delays in conducting inspections. We also note that the first commenter also stated that most horse events retain a farrier onsite, and the other commenter assumed that farriers would not be onsite in recommending a radius of more than 40 miles.

The term
lubricant
in the current definitions means “mineral oil, glycerine or petrolatum, or mixtures exclusively thereof, that is applied to the limbs of a horse solely for protective and lubricating purposes while the horse is being shown or exhibited. . . .” We proposed removing the definition for
lubricant
and prohibiting the use of lubricants on the limbs of all Tennessee Walking Horses and racking horses; the current regulations allow the use of lubricants for Tennessee Walking Horses and racking horses under certain circumstances. Some commenters opposed prohibiting lubricants but were silent on removal of the definition itself. We discuss our reasons for prohibiting lubricants to prevent the soring of horses in this document under the heading “Prohibitions for Tennessee Walking Horses and racking horses.”

We proposed revising the current definition of
management,
which means “any person or persons who organize, exercise control over, or administer or are responsible for organizing, directing, or administering any horse show, horse exhibition, horse sale or horse auction and specifically includes, but is not limited to, the sponsoring organization and show manager.” We received no comments on this proposed change to replace “show manager” with “event manager” and are finalizing as proposed.

We proposed adding a definition of
participate
to § 1.1 to mean engaging in any activity, either directly or through an agent, beyond that of a spectator in connection with a horse show, horse exhibition, horse sale, or horse auction, and includes, without limitation, transporting, or arranging for the transportation of, horses to or from equine events, personally giving instructions to exhibitors, being present in the warm-up or inspection areas or in any area where spectators are not allowed, and financing the participation of others in equine events. We received no comments specifically addressing this proposed addition and are finalizing as proposed.

Person
in the regulations means “any individual, corporation, company, association, firm, partnership, society, organization, joint stock company, or other legal entity.” We proposed revising the definition by adding “State or local government agency” to the list of illustrative examples of a person. This change highlights that State and local government agencies also fall under the definition of
person
for the purposes of enforcing the regulations.

We received no comments specifically addressing this proposed revision and are finalizing as proposed.

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

The regulations currently define
sore
to mean, among other things, that “a person has engaged in a practice involving a horse and, as a result of such . . . practice, such horse suffers, or can reasonably be expected to suffer, physical pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving.” Although we proposed no changes to the definition of
sore,
one commenter asked if the part of the definition referring to a person “engaged in a practice involving a horse” is applicable to a scenario in which a horse is injured in its stall.

We are finalizing as proposed. The regulatory definition of
sore
is patterned after the statutory definition. The scenario mentioned by the commenter is presumably accidental. If, in the professional judgment of a qualified inspector, the horse is not sore, and presuming no other noncompliance is identified, the horse could be shown under the regulations. However, regardless of the commenter's question, if the horse is injured it should first be evaluated to determine if it needs medical attention.

Another commenter stated that the definition of
sore
is not enforceable unless “a person” is actually observed committing any of the actions prohibited under the definition.

We disagree with the commenter. The Act does not require that an act of soring be observed. To the contrary, the Act defines “sore” based on the condition of the horse after the act has occurred.
See
15 U.S.C. 1821(3) (defining “sore” as when “an irritating or blistering agent has been applied,” “any burn, cut, or laceration has been inflicted,” any tack, nail, screw, or chemical agent has been injected,” or “any other substance or device has been used”). Moreover, the commenter's suggestion would deprive properly qualified and trained inspectors from making a professional judgment that a practice that resulted in soring had occurred prior to the inspection.

Sponsoring organization
in the current regulations means “any person under whose immediate auspices and responsibility a horse show, horse exhibition, horse sale, or horse auction is conducted.” We proposed revising the current definition to mean “any person or entity whose direction supports and who assumes responsibility for a horse show, horse exhibition, horse sale, or horse auction that has, is, or will be conducted.” We are making this change to clarify that an “entity” is also included under the definition, and to ensure that any person or entity supporting and assuming responsibility for such an event also falls under the definition. Our proposed revision also clarifies that the sponsoring organization's responsibility applies whether the event in question has already occurred or is yet to occur. We received no comments specifically addressing this revision and are finalizing as proposed.

We also are adding a definition for the term
therapeutic treatment
to mean relating to the treatment of disease, injury, or disorder by or under the supervision of a person licensed to practice veterinary medicine in the State in which such treatment was prescribed. We proposed to define this term to ensure that therapeutic practices applied to any horse covered under the regulations are administered or overseen by qualified veterinarians only. This definition corresponds with the exceptions allowed under the definition of
sore
for any practice involving therapeutic treatment of a horse by or under the supervision of a licensed veterinarian.

A commenter stated that the definition should include a set time limit to be part of the prescribed therapeutic use of pads and other restricted items.

We are making no changes to the definition based on the comment, as we believe a licensed veterinarian is generally best qualified to determine specific treatment plans. We note that we proposed in § 11.14(b)(5) that an expected length of treatment be included as part of the veterinary record that is to be maintained by event management. All such treatment plans are subject to APHIS review, in order to determine whether the plans include the use of substances or practices to cause or mask soring.

A few commenters asked that we include “and such therapeutic practices cannot supersede what is allowed within the HPA” to the end of the definition.

We are adding no such change to the definition because it is unnecessary. The regulations are limited to what is required or permitted in the Act and do not supersede it.

Prohibitions Concerning Exhibitors

Current § 11.2, “Prohibitions concerning exhibitors,” lists general and specific prohibitions for any device, method, practice, or substance used on any horse at any horse show, horse exhibition, horse sale, or horse auction if such use causes or can reasonably be expected to cause such horse to be sore. We are moving those prohibitions from § 11.2 to revised § 11.6 and reserving § 11.2 in the regulations for future use. No commenters took issue with our proposal to move the prohibitions to another section and reserve § 11.2.

Non-Interference With APHIS Representatives

Current § 11.3 contains the “scar rule,” which refers to the presence of certain types of dermatologic conditions on the horse's pastern and fore pastern suggesting that a horse has been sored.

We proposed removing the scar rule from this section. We are including a revised version of it in § 11.7, a section which we had previously reserved in the proposed rule, under the heading “Dermatologic conditions indicative of soring,” or DCIS. We originally proposed to move the revised scar rule to § 11.6(b)(22) but determined that it is thematically incompatible with other provisions in § 11.6(b). We discuss DCIS at greater length later in this document.

The language we proposed adding to revised § 11.3 prohibits persons from assaulting, resisting, opposing, impeding, intimidating, threatening, or interfering with APHIS representatives or HPIs, or in any way influencing attendees of a horse show, exhibition, sale, or auction to do the same. Persons guilty of such violations may be held criminally liable and referred to the U.S. Department of Justice for prosecution. As we noted in the proposal, this amendment strengthens regulatory protections for the safety of both APHIS representatives and HPIs appointed by management and engaged in duties at the events listed, as well as the safety of horses and attendees. We received no comments specifically addressing this revision and are finalizing as proposed.

Owners, Trainers, Exhibitors, Custodians, Transporters, and Any Other Disqualified Person

Section 11.4 of the current regulations includes requirements regarding inspection of horses by APHIS representatives, as well as detention of horses for inspection if an APHIS veterinarian has probable cause to

believe that a horse is sore. We proposed revising § 11.4 to include provisions regarding the status of persons whom USDA has disqualified from showing, exhibiting, selling, or auctioning horses. Provisions for inspection and detention of horses, which currently comprise this section, have been moved to proposed § 11.8.

The text we proposed for revised § 11.4 requires that any person disqualified from participating in any horse show, exhibition, sale, or auction shall not show, exhibit, or enter any horse, directly or indirectly through any agent, employee, corporation, partnership, or other device, and shall not judge, manage, or otherwise participate in events covered by the Act within the period during which the disqualification is in effect. We received no comments specifically on this change and are finalizing this provision to prevent disqualified persons from continuing to participate in shows and other events either directly or indirectly through the aid of other identities or persons.

Appeal of Inspection Report

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

We proposed moving these provisions for access to premises and records to a new § 11.9 and changing the heading of § 11.5 to read “Appeal of inspection report.” In the proposed rule, we proposed to revise § 11.5 to provide that any horse owner, trainer, exhibitor, custodian, or transporter may appeal inspection report findings all or in part to the Administrator. We also proposed that the appeal would require a written statement contesting the inspection finding(s) as well as any documentation or other information in support of the appeal. We proposed that the appeal would have to be received by the Administrator, preferably by electronic mail, or by U.S. mail, within 21 business days of receipt of the inspection report. The Administrator would then send a final decision to the person requesting the appeal.

Several commenters addressed this proposed provision. One commenter stated that “inspection report” is not a defined term in the proposed rule.

As discussed below, the term does not appear in the revised regulations and thus does not need to be defined in this final rule. With that being said, to address the comment for the purposes of the proposed rule, we would define an inspection report as a report that details the finding resulting from an inspection to determine compliance with the Act and regulations. Any alleged noncompliances of the Act or regulations found as a result of the inspection would have been noted in the report.

A few commenters supporting the proposed rule stated that appeals should only apply to adjudicated cases, not inspection reports, adding that the current regulations [§ 11.25] require HIOs to provide a process to appeal penalties resulting from inspections—not the results of the inspections themselves. One commenter stated that if a horse is found sore under the proposed regulations and disqualified without prosecution or penalty, there should be no appeal.

The Act directs the Secretary not to assess a penalty or issue a cease-and-desist order without giving parties the right to appeal and opportunity to a hearing. There will be no civil penalties assessed without notice and an opportunity for a hearing, and all noncompliances will be subject to enforcement by the Department. As explained below, we have amended proposed § 11.5 so that it addresses due process and provides for appeal of a disqualification.

A commenter stated that the removal of the regulatory role of HIOs leaves no recourse or appeal for a determination of violation and appears to permit an appeal only if USDA determines there is “probable cause” to do so, meaning it passes an absolute judgment upon its own decision and imposes a 21-day limitations period on any appeal. The commenter added that by imposing a 21-day deadline, USDA would now require owners and trainers to challenge every disqualification or risk having USDA later argue that any such challenge was waived.

Though unclear, the commenter's mention of “probable cause” is apparently in reference to the provision for re-inspection of detained horses under proposed § 11.8(h), in which an alleged violator may request re-inspection and testing of a horse provided that the request is made to APHIS “immediately after the horse has been examined by APHIS representatives,” and that “an APHIS representative determines that sufficient cause for re-inspection and testing exists.” The 21-day limitation period referenced by the commenter applies to appeal of the inspection report under proposed § 11.5. As discussed below, the two are distinct processes, and, under the terms of the proposed rule, a party could file an appeal to contest an inspection report regardless of whether re-inspection was requested or not.

The intent of proposing appeal of an inspection report under § 11.5 was to explore potential options to provide parties with a recourse to appeal disqualification, including possible options to resolve disputes before the show takes place. The 21 days permitted for an appeal gives time for the alleged violator to prepare an appeal, although the individual can choose to submit the appeal of disqualification at any point up to 21 days. We did not consider it likely that an alleged violator would appeal the inspection report unless they had been disqualified. With that being said, the commenter is correct that, under the specific terms of the proposed rule, there was no direct recourse for appeal in the proposed rule following a determination resulting in a disqualification. Moreover, for purposes of due process, it is the disqualification itself, rather than the inspection report, for which we think appeal should be afforded.

To address this matter, we are revising proposed § 11.5 to provide for appeal of the disqualification itself, rather than the inspection report. As revised, it provides that any horse owner, trainer, exhibitor, custodian (or any other person responsible for entering the horse in an event), or transporter may appeal to the Administrator for a decision on whether a disqualification decision concerning a horse at a horse show, horse exhibition, horse sale, horse auction, or other covered event was justified. There may only be one appeal per disqualified horse per event; however, all parties with interest in the disqualification may contribute to the appeal. (This will preclude duplicative appeals and help focus agency resources on expeditious evaluation of the appeals received.) To appeal, the horse owner, trainer, exhibitor, custodian, or transporter must send a written statement contesting the disqualification and include any

documentation or other information in support of the appeal. To receive consideration, the appeal must be received by the Administrator, preferably by electronic mail, to
horseprotection@usda.gov
within 21 days of the date the horse owner, trainer, exhibitor, custodian or transporter received the disqualification that is the subject of the appeal. In addition, we are adding an avenue to request expedited review. If expedited review of the appeal is requested, this must be noted as such, and information in support of this request must accompany the appeal so that APHIS may ascertain whether expedited review is warranted. The Administrator will send a final decision, in writing via either electronic mail or postal mail, to the person requesting the appeal as promptly as practicable. Additionally, the above-mentioned provision for re-inspection in proposed § 11.8(h), in which an alleged violator may request re-inspection of a horse, addresses due process concerns to some degree by giving the violator an imminent opportunity to appeal a disqualification resulting from inspection in the field. However, the re-inspection is contingent on whether the inspector determines that sufficient cause exists for doing so. If the horse passes a re-inspection before the show, there is no disqualification based on inspection results. If the horse fails the re-inspection, the disqualification stands, and the alleged violator may appeal through the process in § 11.5.

The same commenter stated that forcing owners and trainers to challenge every disqualification on a purportedly inadequate record does not comport with due process or allow them to be heard in a meaningful manner. The commenter added that to comport with due process, USDA must require any disqualification to be supported by adequate evidence and documentation by requiring the inspector to document and provide photographic evidence of any “dermatologic conditions,” and allowing an owner or trainer to photograph or film an inspection in order to raise challenges to that inspection at a later date.

APHIS representatives and HPIs are required to document noncompliant dermatologic conditions, as well as any other indications of noncompliance.
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As the commenter correctly stated, due process involves providing the custodian of the horse adequate notice of the basis for the disqualification as soon as practicable and prior to the deadline to appeal. We will do so by providing the inspection report to the custodian following the disqualification so that, prior to leaving the event, they have the information necessary to mount an appeal based on dispute of material fact. With that being said, owners and trainers are free to record inspections from a position outside the inspection area.

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APHIS representatives and other qualified persons prepare this documentation as part of fulfilling the notification requirement for reporting sore horses to management in accordance with section 4 of the Act (15 U.S.C. 1823(b)). The Horse Protection program also internally requires that such documentation be prepared and maintained for reporting and enforcement purposes by APHIS representatives and qualified persons inspecting horses.

One commenter stated that a fundamental tenet of due process requires that parties receive fair notice of the specific standards by which they are being deprived of any property interest. On this point, they stated that the standards for an HPA violation under the existing regulations and the proposed rule are vague and fail to provide adequate notice, particularly the revised scar rule's reference to “dermatologic conditions.”

We disagree that the regulations do not provide persons with knowledge of what might constitute a violation, including with respect to dermatologic conditions. The prohibitions on particular action devices, types of pads and wedges, and substances are clear and unambiguous. Likewise, under the regulations as revised in this final rule, dermatologic conditions cannot be any conditions whatsoever, but only those that an HPI or APHIS representative determines to be indicative of soring as that term is defined in the statute, including irritation, moisture, edema, swelling, redness, epidermal thickening, and loss of hair (patchy or diffuse). Moreover, following the disqualification, the HPI or APHIS representative will disclose the specific basis for the disqualification through issuance of an inspection report and the party involved may contest the disqualification through appeal.

A commenter asked us what happened to the provisions in current § 11.25, particularly in light of a discrepancy between the preamble and the regulatory text. The preamble had stated that the regulatory text of the proposed rule contained a parallel process in § 11.5 “for alleged violators to appeal penalties resulting from inspections conducted by APHIS representatives or HPIs appointed by management,” yet the regulatory text contained no such parallel process.

The provisions in § 11.25 give authority to HIOs to establish and enforce minimum penalties for violators. Because we proposed to relieve HIOs of all regulatory roles and responsibilities under the HPA, there was no longer a need for the provisions in that section. With regard to the discrepancy between the preamble and the regulatory text, we initially intended to draft a separate process to establish and enforce minimum penalties for violators, as well as the right for violators to contest any attempt to enforce such penalties. Later on, during development of the proposed rule, we determined that the existing right to a hearing provided for in the Act, the process for which is described in 7 CFR part 1, contains such a process, and that a separate process would be duplicative and potentially confusing. The regulatory text of the proposed rule reflects the Agency's intent.

With that being said, as noted above, we are explicitly providing for appeal of disqualification under § 11.5 in this final rule.

In 2016, we published a separate proposed rule to revise the HPA regulations in the
Federal Register
(81 FR 49112-49137, Docket No. APHIS-2011-0009). In response to the 2016 proposal, several commenters submitted due process concerns over reviews of pre-show inspection findings of soring and subsequent disqualification from showing. Some commenters at the time requested that we develop a pre-show process whereby owners and trainers may contest and seek immediate review of a finding that a horse is sore. They also suggested that when USDA diagnoses a horse as sore after initially being passed by a DQP, the horse should be allowed to be shown until there is a final decision in the matter,
i.e.,
until due process is completed.

We suggested in the proposal to this final rule that one possible solution involves conducting pre-show inspections far enough in advance of the exhibition or show to allow for an opportunity to be heard before the event. A key problem with this solution, however, is that the farther in advance of a show that an inspection takes place, the more time there is to sore a horse after the inspection and before the show. Monitoring protocols would need to be developed and staffed to ensure horses are not sored following inspection. Moreover, under the current event structure, there is insufficient time to conduct a review process between the inspection and the horse being exhibited or shown, and it would require a significant change in show and exhibition practices, and possible restructuring of the industry itself, to allow such a process to take place. It

would also entail deploying more inspectors to shows and developing monitoring protocols to ensure horses are not sored following inspection.

We acknowledged in the proposal that there may be other means of addressing the issue and requested public comment regarding other alternatives to a pre-show review process, including consideration of regulatory bodies, statutory authorities, or incentives and disincentives, including withholding or forfeiture of prize money. To determine the feasibility of a pre-show inspection and review, we asked for comments addressing the particulars of such a review, including where and when the pre-show inspection might be conducted, how monitoring of horses after inspection would take place to prevent tampering, and what parties should be involved in the review process.

We received several comments supporting and opposing a pre-show inspection that would allow for reviews of soreness findings.

Most commenters addressing this subject agreed that such a review is not feasible under the way that shows are currently conducted. Several commenters stated that it is not possible to adjudicate in the limited timeframe between examining a horse and competition, with one adding that the point is to have qualified inspectors undertaking examinations and not finding ways to override their findings. Another commenter stated that it is unacceptable to propose that the findings of a qualified, unbiased professional inspector should be challenged and overridden in the moment at an event. The commenter added that the HPA requires that a horse in violation must be prohibited from being shown, and that any delay in or failure to invoke this prohibition would be in violation of the Act. One commenter opined that concerns about due process originated in the conflicts seen when a DQP would `pass' a horse and the APHIS inspector would subsequently `fail' the horse as sored, and that with abolishment of the DQP program and the use of only inspectors screened and authorized by APHIS, a pre-show review to resolve such conflicts would be unnecessary.

We agree with commenters that it is not feasible to adjudicate in the limited timeframe between examining a horse and competition; we did not receive comments that suggested alternative show practices that would make a pre-show review process practicable. The HPA prohibits showing or exhibiting horses determined as sore from showing, with a litigation risk inherent in allowing horses that may be sore to show. Also, the longer the interval between an inspection and the event, the more opportunity there is to sore a “cleared” horse. As we indicated in our recent proposal, section 4 (15 U.S.C. 1823(a)) of the HPA vests in management the responsibility to disqualify or prohibit a horse from being shown, exhibited, sold, or auctioned following a determination by an inspector that the horse is sore. Specifically, the statute and regulations require management to (among other actions) disqualify a horse in instances where (1) the horse is sore or (2) management is notified by a DQP or APHIS representative that the horse is sore. Further, section 5 (15 U.S.C. 1824) requires that management disqualify such horses by listing the failure to do so as an “unlawful act.” Because of these statutory considerations, and because commenters could not provide a meaningful way to allow for a pre-show hearing following an inspection resulting in disqualification, we consider the appeals process in this final rule, which allows for prompt post-disqualification appeal, due process regarding the deprivation caused by disqualification. Further, the re-inspection provision in proposed § 11.8(h) addresses due process concerns to some degree by giving an alleged violator an opportunity to appeal a disqualification resulting from inspection in the field provided sufficient cause for doing so is determined by an APHIS representative. If a horse passes a re-inspection before the show, there is no disqualification based on inspection results.

A commenter opposed to the proposed rule stated that under the current system, horse owners have no right to raise a challenge and have their horses shown if they are disqualified before a show, and that the rule offers no solution to this problem. The commenter stated that to address due process concerns with its enforcement efforts, USDA must begin by looking at other breeds covered under the HPA and consider an objective inspection system that utilizes blood testing, urinalysis, thermography, x-rays/radiology, and gas chromatography-mass spectrometry. The commenter further recommended that the program be overseen by an independent inspection entity under the current HIO structure or through some other new structure as is currently allowed in other breed programs.

These comments do not offer a workable solution. No such tests listed by the commenter can definitively rule out that a horse has been sored, and the commenter discounted a determination of soring by a trained inspector who has palpated the horse and found sensitivity to be present. As we stated above, the NAS study considered this part of the inspection protocol to be the “gold standard” for detecting local pain and inflammation.
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It is also worth noting that one commenter stated that the practice of disqualifying a horse based on an adverse inspection finding (
i.e.,
not allowing the horse to be shown/exhibited), with appeals possible after the fact, is consistent with what is done in other breeds. To that end, we note that one of the commenter's suggestions would entail retention of the regulatory functions of HIOs, which, for reasons discussed in the proposed rule and this final rule, we are abolishing.

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NAS study, page 46.

Finally, we note that the commenter failed to address critical details regarding how any pre-show review process could achieve the statutory prohibition against showing sored horses. Details that the commenter did not address in their recommendation include where and when the inspection should take place if a pre-show review process will be afforded, who should be physically present for the review process, and how the health and safety of the horse should be monitored after the inspection to make sure the horse is not subsequently sored while review is ongoing. Because of these deficiencies, and in light of the foregoing considerations that counsel against pre-show review processes, we do not consider the commenter to have provided a meaningful recommendation to afford pre-deprivation due process.

One commenter asked who would be appointed to a pre-show review process, noting that reviewers would have to be on site in addition to the inspectors, and wanted to know how APHIS would fill the gap.

We cannot answer the commenter's question as to whom we would appoint, as we only asked for comments about the feasibility of establishing such a review process.

We also asked how a pre-show review process might implicate or interact with the re-inspection process currently located in § 11.4(h), which we are revising and moving to new § 11.8(h). As we note above, this re-inspection provision provides a pre-show means to appeal an initial disqualifying inspection in the field by requesting a second inspection provided that sufficient cause for reinspection exists and an APHIS representative is available to perform the re-inspection. If a re-inspection is granted and the horse

passes, there is no disqualification based on inspection results. We received no comments specifically on this point.

Finally, a few commenters provided specific ideas for disincentivizing soring, as we requested. One commenter suggested that any horse found to be sore not be allowed to show for 6 months. The commenter also recommended making the offspring of a horse found to be sore more than one time ineligible for breed registration, as well as not allowing a sore horse to be sold for 2 years after diagnosis, which would reduce the value of such horses and disincentivize soring.

We think this final rule is adequate to disincentivize soring. Therefore, we do not think the measures proposed by the commenter, even if they fall within the bounds of the Act, are necessary.

A commenter suggested that the Act be strengthened by fining violators $5,000 for the first offense, $25,000 for the second, $150,000 for the third, and taking the horse in question for a fourth offense.

We are making no change in response to the commenter's suggestion. Penalties are enshrined in the Act and require Congressional action to change.

Another commenter asked why the rule does not include the imposition of extended disqualification periods, up to and including lifetime disqualifications, and to consider including extended disqualification periods for sore horses or offenders with multiple violations.

These periods are listed in the Act and cannot be changed without an act of Congress.

Prohibitions To Prevent Soring

Current § 11.2, “Prohibitions concerning exhibitors,” contains general and specific prohibitions on certain devices, methods, practices, or substances used on any horse at any horse show, horse exhibition, horse sale, or horse auction covered under the Act. These current prohibitions already include prohibitions intended specifically for Tennessee Walking Horses and racking horses regarding substances and duration of workouts in paragraphs (c) and (d) respectively.

We proposed to revise § 11.6 and retain the current § 11.2 heading “Prohibitions concerning exhibitors.” As with current § 11.2, revised § 11.6 lists general and specific prohibitions on certain devices, methods, and practices used on any horse at any horse show, horse exhibition, horse sale, or horse auction. We also proposed to include new prohibitions in § 11.6(c) specific to Tennessee Walking Horses and racking horses.

General Prohibitions

Current paragraph § 11.2(a) contains a general prohibition on the use of any device, method, practice, or substance on any horse at any horse show, exhibition, sale, or auction if that use causes or can reasonably be expected to cause a horse to be sore.

We proposed in § 11.6(a) to include a similar general prohibition on the use of any device, method, practice, or substance. We also proposed adding a provision under the general prohibitions prohibiting the use on a horse of any device, method, practice, or substance that masks soring.

Under section 5 (15 U.S.C. 1824(7)) of the Act, APHIS has the authority to prohibit any equipment, device, paraphernalia, or substance that a horse is wearing or bearing which the Secretary by regulation under section 9 (U.S.C. 1828) of the Act prohibits to prevent the soring of horses. USDA considers prohibiting items and substances that mask soring to be essential in helping to prevent the soring of horses, as masking can impede efforts to detect soring through inspections. APHIS currently considers the use of substances to mask soring as a violation of the Act and regulations and conducts enforcement accordingly. Our addition of the prohibition on masking in the general prohibitions is intended to underscore what the Act already prohibits. (We also proposed prohibiting lubricating substances.)

As masking typically involves the use of substances, including lubricants, we address comments relating to masking below under “Lubricants.”

Prohibited Devices, Equipment, and Practices

Paragraph (b) of current § 11.2, “Specific prohibitions,” prohibits on any horse the use of certain devices, methods, practices, and substances at any covered horse show, exhibition, sale, or auction. Under the current regulations, some restricted uses are permitted provided they do not exceed the specifications accompanying each.

In proposed § 11.6(b), “Prohibited devices, equipment, and practices,” we similarly list devices, equipment, and practices that are prohibited on any horse at a horse show, horse exhibition, horse sale, or horse auction, including Tennessee Walking Horses and racking horses. We address specific comments we received on the list below.

We noted in the proposal that § 11.6(b) will continue to allow breeds other than Tennessee Walking Horses and racking horses to use certain rollers, chains, and bell boots weighing 6 ounces or less, as well as pads that elevate or change the angle of hooves 1 inch or less at the heel, and certain toe extensions, shoes, and metal hoof bands. Except for Tennessee Walking Horses and racking horses, for which all action devices are prohibited under proposed paragraph (c)(1), we also proposed in paragraph (b) to continue to allow the use of an action device on each limb of a horse if the device weighs 6 ounces or less.

As proposed, we are moving from current § 11.2 to § 11.6(b)(1) the provision prohibiting more than one action device permitted under this section on any limb of a horse. We did not receive comments specific to that change and are finalizing as proposed.

In paragraph (b)(2), we are moving from current (b)(1) the prohibition on all beads, bangles, rollers, and similar devices, with the exception of rollers made of lignum vitae (hardwood), aluminum, or stainless steel, with individual rollers of uniform size, weight and configuration, provided each such device may not weigh more than 6 ounces, including the weight of the fastener. We did not receive comments specific to that provision and are finalizing as proposed.

In paragraph (b)(3), we are moving from current § 11.2(b)(2) the prohibition on chains weighing more than 6 ounces each, including the weight of the fastener. We did not receive comments specific to this provision and are finalizing as proposed. (We received comments on the prohibition of chains and chain weights pertaining to Tennessee Walking Horses and racking horses, which we address under “Action Devices, Pads, and Wedges” below.)

In paragraph (b)(4), we are moving from current § 11.2(b)(3) the prohibition on chains with links that are not of uniform size, weight, and configuration and chains that have twisted links or double links. We did not receive comments specific to that provision and are finalizing as proposed.

In paragraph (b)(5), we are moving from current § 11.2(b)(4) the prohibition on chains that have drop links on any horse that is being ridden, worked on a lead, or otherwise worked out or moved about. We did not receive comments specific to that provision and are finalizing as proposed.

In paragraph (b)(6), we are moving from current § 11.2(b)(6) the prohibition on chains or lignum vitae, stainless steel, or aluminum rollers which are not smooth and free of protrusions, projections, rust, corrosion, or rough or sharp edges. We did not receive

comments specific to that provision and are finalizing as proposed.

In paragraph (b)(7), we are moving from current § 11.2(b)(7)(i) the prohibition on boots, collars, or any other devices, with protrusions or swellings, or rigid, rough, or sharp edges, seams or any other abrasive or abusive surface that may contact a horse's leg. We did not receive comments specific to that provision and are finalizing as proposed.

In paragraph (b)(8), we are moving from current § 11.2(b)(7)(ii) the prohibition on boots, collars, or any other devices that weigh more than 6 ounces, except for soft rubber or soft leather bell boots and/or quarter boots that are used as protective devices. We did not receive comments specific to that provision and are finalizing as proposed.

In paragraph (b)(9), we are moving from current § 11.2(b)(8) the prohibition on pads or other devices on horses up to 2 years old that elevate or change the angle of such horses' hooves in excess of 1 inch at the heel. While we received many comments on the prohibition of pads on Tennessee Walking Horses and racking horses, we did not receive comments on this specific provision as it pertains to § 11.2(b) and are finalizing as proposed.

In paragraph (b)(10), we are moving from current § 11.2(b)(9) the prohibition on any weight on horses up to 2 years old, except a keg or similar conventional horseshoe, and any horseshoe on horses up to 2 years old that weighs more than 16 ounces.

Some commenters stated that USDA should prohibit weighted shoes on any Tennessee Walking Horses and racking horses at covered events because they can increase the potential for injury in the form of tissue damage or overexertion of the musculature. One commenter cautioned against an outright prohibition on weighted shoes, noting that all horseshoes have weight, and proposed a maximum shoe weight limit of 16 ounces, while other commenters suggested setting a similar shoe weight limit for all horses. Another commenter stated that some Tennessee Walking Horses are wearing shoes made from metals heavier than steel or iron, and that the heavier shoes are inducing soring even in horses in flat-shod classes. To prohibit the use of heavier metals for shoes, some commenters recommended that the shoes required for horses of all ages be made completely of rubber, plastic, aluminum, or steel. On the other hand, some commenters asked that we continue to allow heavy shoes for horses that tend to be overly “pacey.”

We are finalizing as proposed. While we limit shoe weights on horses up to 2 years old to 16 ounces or less, there is no scientific literature that we are aware of on which we can base a prohibition on shoes weighing more than 16 ounces on older horses at this time. Therefore, we are not including a weight limit on shoes for horses 2 years and older. We are actively collecting data on the usage and effects of shoes weighing more than 16 ounces on horses and will consider prohibiting such shoes in a future rulemaking, if warranted.

Another commenter stated the proposed rule is insufficient because it allows the use of “a keg or similar conventional horseshoe” without a weight limitation.

The proposed provision in paragraph (b)(10) actually limits horseshoe weights on horses up to 2 years old to 16 ounces or less, which includes a “keg or similar conventional horseshoe.” However, to ensure that the provision is clear on this point we are including the words “that weighs 16 ounces or less” after the words “keg or similar conventional horseshoe.”

Many commenters asked that hoof bands and any weight attached to the hoof or horseshoe (other than a keg or similar conventional horseshoe itself, including the allowable caulk and any studs or material used on the bottom of the shoe for traction) weighing more than 16 ounces should be prohibited on horses of any age in the three breeds known to be subjected to soring. We are not making any changes to the regulations regarding hoof bands or horseshoe weights. Horseshoes are not a prohibited item and hoof bands, when used in accordance with proposed paragraph (b)(17), can serve to secure the shoe to the hoof. As we note above, we continue to collect data on the effects of shoes weighing more than 16 ounces on horses.

A commenter stated that if USDA allows heavy shoes, it should require management to inform APHIS if heavy shoes will be permitted at a show (extending § 11.16(a)(7) accordingly).

Proposed § 11.16(a)(7) requires that management contact APHIS if they plan to allow any horse to be shown, exhibited, or sold undergoing therapeutic treatment with any of the items otherwise prohibited in § 11.6. The proposed regulations do not consider shoes weighing more than 16 ounces on horses 2 years old and older to be a prohibited item. We are not making a change to the regulations that would require management to inform APHIS if they plan to allow heavy shoes because absent such a prohibition, we do not expect any show to prohibit such shoes. We continue to gather information on the effects of shoes weighing more than 16 ounces and will consider future limitations on such shoes if we determine their prohibition is necessary to prevent the soring of horses.

The same commenter added that whether or not management plans to allow horses to wear pads or wedges, if they plan to allow the use of heavy shoes on horses, a farrier should be required to be present or on call to pull a shoe for inspection if called for by an APHIS representative or HPI.

The farrier requirement stands for any horse show that has appointed an APHIS representative or HPI to conduct inspections, as even horses wearing shoes that are not heavy may need to have a shoe pulled upon request of an inspector to check for conditions such as pressure shoeing. A trained farrier's presence is important because only a farrier can safely remove or replace shoes on a horse.

Several commenters cited possible problems with shoe width impeding proper inspection of the horse's hooves. Some commenters recommended a requirement that shoe dimensions cannot exceed 1
1/2
inches wide by
1/2
inch thick and cannot obstruct the use of hoof testers on the sole and frog, and one suggested that APHIS adopt language from other breed disciplines by adding to the provision “the sole and entire frog of the foot must be visible.”

We are not setting specific dimension requirements on shoes because we reviewed research available regarding horseshoe dimensions and did not determine there was sufficient evidence to justify any restrictions at this time. APHIS will collect data regarding the use of these shoes and consider horseshoe dimension restrictions in a future rulemaking if we determine they are necessary to prevent the soring of horses. We note that APHIS may examine or require that a shoe be removed at any time if necessary to determine if a horse is sore.

In paragraph (b)(11), we are moving from current § 11.2(b)(10) the prohibition on artificial extension of the toe length, whether accomplished with pads, acrylics, or any other material or combinations thereof, that exceeds 50 percent of the natural hoof length, as measured from the coronet band, at the center of the front pastern along the front of the hoof wall, to the distal portion of the hoof wall at the tip of the toe. The artificial extension must be measured from the distal portion of the hoof wall at the tip of the toe at a 90-

degree angle to the proximal (foot/hoof) surface of the shoe.

Some commenters stated that, if they are to remain, recommended toe extensions should be within the limit of 50 percent of the natural hoof length as measured from the hairline of the hoof capsule to the center of the front pastern along the front of the hoof wall to the distal portion of the hoof wall at the tip of the toe. One commenter recommended that the maximum toe length be 4
1/2
inches, including the thickness of the shoe, measured as specified in United States Equestrian Federation (USEF) General Rule 510.
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To view General Rule 510, go to
https://www.usef.org/forms-pubs/s9SeSv4S0Sc/gr--general-rules.

We are finalizing as proposed. To make a determination about the specific lengths recommended by commenters, we will require more research on artificial toe lengths used for other horse breeds, most of which are regulated under USEF.

Another commenter stated that allowing toe extensions in proposed § 11.6(b)(11) is open to abuse because “natural hoof length” can be manipulated to far exceed ideal hoof length, and then a further toe extension is permitted beyond that. The commenter added that artificial toe extensions should be prohibited entirely.

We assume the commenter's concern is not with the provision as applied in § 11.6(b)(11), but with artificial toe extensions and soring in Tennessee Walking Horses and racking horses, insofar as soring is rarely practiced and confers no competitive advantage to horses that do not practice the “big lick” step in Performance division events. We note that all artificial toe extensions will be prohibited on any Tennessee Walking Horse or racking horse unless such horse has been prescribed and is receiving therapeutic treatment as approved in writing by a licensed veterinarian. However, even if a Tennessee Walking Horse or racking horse is wearing artificial toe extensions under a therapeutic exemption, the toe extension cannot exceed the restrictions for all horses in § 11.6(b)(11) and (12) of this final rule. To the commenter's point, regulations cannot prescribe “ideal” hoof length, but a prohibition of all toe extensions unless therapeutically required can be considered in a future rulemaking if evidence arises that supports such a prohibition in other horse breeds.

In paragraph (b)(12), we are moving from current § 11.2(b)(11) the prohibition on toe length that does not exceed the height of the heel by 1 inch or more. The length of the toe must be measured from the coronet band, at the center of the front pastern along the front of the hoof wall to the ground. The heel must be measured from the coronet band, at the most lateral portion of the pastern, at a 90-degree angle to the ground, not including normal caulks at the rear of a horseshoe that do not exceed
3/4
inch in length. That portion of caulk at the rear of a horseshoe in excess of
3/4
of an inch must be added to the height of the heel in determining the heel/toe ratio.

A few commenters stated that caulks exceeding
3/4
of an inch should be prohibited entirely.

We are finalizing as proposed. We will consider such a prohibition in a future rulemaking if evidence is identified supporting such a prohibition. As it stands now, caulks exceeding
3/4
of an inch must have the extra height considered in heel/toe ratio measurements.

In paragraph (b)(13), we are moving from current § 11.2(b)(12) the prohibition on pads that are not made of leather, plastic, or a similar pliant material. While we received numerous comments regarding the prohibition on pads for Tennessee Walking Horses and racking horses, we received none that opposed our moving this specific provision to proposed § 11.6(b) and we are finalizing as proposed.

In paragraph (b)(14), we are moving from current § 11.2(b)(13) the prohibition on any object or material inserted between the pad and the hoof other than acceptable hoof packing, which includes pine tar, oakum, live rubber, sponge rubber, silicone, commercial hoof packing, or other substances used to maintain adequate frog pressure or sole consistency. We proposed and are adding a prohibition on the use of acrylic or other hardening substances as hoof packing.

A commenter stated that eliminating non-therapeutic pads and wedges in proposed § 11.6(c)(3) means that § 11.6(b)(14) should be revised to prohibit all objects or materials inserted into the hoof, as most hoof-packing materials require a pad to hold them in place.

We are making no changes in response to the commenter. Certain pads continue to be permitted for breeds other than Tennessee Walking Horses and racking horses not covered under § 11.6(c). Moreover, pads for therapeutic treatment can still be prescribed by a licensed veterinarian in accordance with proposed § 11.6(c)(3) for Tennessee Walking Horses and racking horses.

We proposed in paragraph (b)(15) to move from current § 11.2(b)(14) the prohibition on single or double rocker-bars on the bottom surface of horseshoes which extend more than 1
1/2
inches back from the point of the toe, or which would cause, or could reasonably be expected to cause, an unsteadiness of stance in the horse with resulting muscle and tendon strain due to the horse's weight and balance being focused upon a small fulcrum point.

A commenter asked that we develop a regulatory definition in § 11.6(b)(15) that clearly distinguishes between permitted shoes and prohibited “non-conventional” shoes and asked that we include other specific types of abusive shoes that APHIS wants to ban in order to prevent soring.

We are finalizing as proposed. Requirements pertaining to shoes are addressed in the discussion of § 11.6(b)(10); questions about the regulatory status of a specific shoe type can be directed to APHIS.
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Send email to
horseprotection@usda.gov,
or U.S. mail to USDA/APHIS/AC, 2150 Centre Ave. Building B, Mailstop 3W11, Fort Collins, CO 80526-8117.

We proposed in paragraph (b)(16) to move from current § 11.2(b)(15) the prohibition on metal hoof bands, such as used to anchor or strengthen pads and shoes, if placed less than
1/2
inch below the coronet band. In paragraph (b)(17), we are moving from § 11.2(b)(16) the prohibition on metal hoof bands that can be easily and quickly loosened or tightened by hand, by means such as, but not limited to, a wing-nut or similar fastener.

A commenter asked why an exhibitor is not allowed to correct a loose hoof band and re-show.

We expect exhibitors presenting for inspection to check their horse for any compliance issues prior to actually presenting. If after the horse has passed inspection and prior to showing the custodian identifies that the hoof band has become loose, only then can the band be adjusted as needed under the supervision of an HPI authorized by the event or an APHIS representative.

In paragraph (b)(18), we proposed to move from current § 11.2(b)(17) the prohibition on any action device or any other device that strikes the coronet band of the foot of the horse except for soft rubber or soft leather bell boots that are used as protective devices. We did not receive comments specific to that provision and are finalizing as proposed.

In proposed paragraph (b)(19), we are moving from current § 11.2(b)(18) the prohibition on shoeing a horse or

trimming a horse's hoof in a manner that will cause such horse to suffer, or can reasonably be expected to cause such horse to suffer pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving. To this prohibition, we added language not in current paragraph (b)(18) prohibiting paring the frog or sole in such a manner to cause the pain and distress described above, and prohibiting bruising of the hoof or any other method of pressure shoeing.

A commenter asked if a horse would be considered sore if a farrier accidentally trims a hoof too short, or if a ride across hard, rocky ground results in an accidental bruise to the sole.

We are finalizing as proposed. We note that under proposed § 11.6(b)(19), trimming a horse's hoof in a manner that will cause such horse to suffer, or can reasonably be expected to cause such horse to suffer pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving is prohibited. Also, bruising of the hoof or any other method of pressure shoeing is prohibited. Regardless of the intent of the farrier, any horse with such injuries entered into an event may be considered sore.

Another commenter stated that in all the APHIS “violations” issued there is not one pressure shoeing violation, so the justification for eliminating the pad on that basis is unfounded.

We disagree with the commenter about pressure shoeing. Pressure shoeing involves either cutting a significant portion of or causing significant trauma to a horse's hoof immediately before nailing a shoe to the hoof, and can cause or be expected to cause the horse to suffer pain or distress when moving. Further, the commenter is incorrect in stating there are no pressure shoeing violations. APHIS has issued at least one violation, in 2018, for pressure shoeing that is specifically a soring violation, but the number of violations issued for pressure shoeing is not indicative of its ability to cause pain and suffering in horses.

In paragraph (b)(20), we are moving from current § 11.2(b)(19) the prohibition on lead or other weights attached to the outside of the hoof wall, the outside surface of the horseshoe, or any portion of the pad except the bottom surface within the horseshoe. In addition, pads may not be hollowed out for the purpose of inserting or affixing weights, and weights may not extend below the bearing surface of the shoe. Hollow shoes or artificial extensions filled with mercury or similar substances are also prohibited in this paragraph.

While some commenters specifically asked us to consider prohibiting any weight of more than 16 ounces attached to the hoof or horseshoe on Tennessee Walking Horses, racking horses, and Spotted Saddle Horses, we received no comments specific to other prohibitions of this paragraph and are finalizing as proposed. Those comments are addressed under the discussion of paragraph (b)(10) above.

Stewarding

In proposed paragraph (b)(21), we added a prohibition on the use of whips, cigarette smoke, or similar actions or paraphernalia to distract a horse or to otherwise impede the inspection process during an examination, in

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-09469. Public record. Not legal advice.