[Federal Register Volume 88, Number 160 (Monday, August 21, 2023)]
[Proposed Rules]
[Pages 56924-56962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17814]



[[Page 56923]]

Vol. 88

Monday,

No. 160

August 21, 2023

Part II





Department of Agriculture





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Animal and Plant Health Inspection Service





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9 CFR Part 11





Horse Protection; Proposed Rule

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

[[Page 56924]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 11

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


Horse Protection

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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

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

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to www.regulations.gov. 
Enter APHIS-2022-0004 in the Search field. Select the Documents tab, 
then select the Comment button in the list of documents.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2022-0004, Regulatory Analysis and Development, PPD, 
APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-
1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at www.regulations.gov or in our reading room, which is 
located in Room 1620 of the USDA South Building, 14th Street and 
Independence Avenue SW, Washington, DC. Normal reading room hours are 8 
a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure 
someone is there to help you, please call (202) 799-7039 before coming.

FOR FURTHER INFORMATION CONTACT: Dr. Aaron Rhyner, DVM, Assistant 
Director, USDA-APHIS-Animal Care, 2150 Centre Ave., Building B, 
Mailstop 3W11, Fort Collins, CO 80526-8117; [email protected]; 
(970) 494-7484.

SUPPLEMENTARY INFORMATION: 
    Under the Horse Protection Act (HPA, or the Act, 15 U.S.C. 1821 et 
seq.), the Secretary of Agriculture is authorized to promulgate 
regulations to prohibit the movement, showing, exhibition, or sale of 
sore horses.
    The Secretary has delegated responsibility for administering the 
Act to the Administrator of the U.S. Department of Agriculture's (USDA) 
Animal and Plant Health Inspection Service (APHIS). Within APHIS, the 
responsibility for administering the Act has been delegated to the 
Deputy Administrator for Animal Care. Regulations and standards 
established under the Act are contained in 9 CFR part 11 (referred to 
below as the regulations), and 9 CFR part 12 lists the rules of 
practice governing administrative proceedings.
    Section 2 of the Act, ``Definitions'' (15 U.S.C. 1821(3)), defines 
a ``sore'' horse as follows:
    ``The term `sore' when used to describe a horse means that:
    (A) An irritating or blistering agent has been applied, internally 
or externally, by a person to any limb of a horse,
    (B) Any burn, cut, or laceration has been inflicted by a person on 
any limb of a horse,
    (C) Any tack, nail, screw, or chemical agent has been injected by a 
person into or used by a person on any limb of a horse, or
    (D) Any other substance or device has been used by a person on any 
limb of a horse or a person has engaged in a practice involving a 
horse, and, as a result of such application, infliction, injection, 
use, or practice, such horse suffers, or can reasonably be expected to 
suffer, physical pain or distress, inflammation, or lameness when 
walking, trotting, or otherwise moving. . . .''
    Soring has been used primarily in the training of Tennessee Walking 
Horses and racking horses \1\ to produce an exaggerated gait in 
competition. However, the HPA's prohibition against sored horses 
participating in shows, exhibitions, sales, and auctions applies to all 
horse breeds.\2\ In addition to declaring that the soring of horses is 
cruel and inhumane, Congress further found that the movement, showing, 
exhibition, or sale of sore horses in intrastate commerce adversely 
affects and burdens interstate and foreign commerce and creates unfair 
competition.
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    \1\ The racking horse is a breed derived from the Tennessee 
Walking Horse. It has a smooth, natural gait known as the ``rack,'' 
a four-beat gait with only one foot striking the ground at a time.
    \2\ APHIS monitors the activities of other breeds and 
investigates credible evidence of soring as warranted.
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Background of HPA Regulations

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

[[Page 56925]]

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

Summary of Current Regulations

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

[[Page 56926]]

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

[[Page 56927]]

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

Evaluation of the Horse Protection Program

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

[[Page 56928]]

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

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

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

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

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

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

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

[[Page 56929]]



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


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


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

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

[[Page 56930]]

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

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

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

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

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

2011 HPA Rulemaking

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

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

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

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

    On August 13, 2019, the Humane Society of the United States and 
other non-governmental organizations filed a lawsuit. HSUS argued that 
the 2017 HPA final rule had been duly promulgated and could not be 
withdrawn without first providing public notice in the Federal Register 
and an opportunity for public comment. On July 27, 2020, the U.S. 
District Court for the District of Columbia dismissed the suit, holding 
that a rule becomes final upon publication in the Federal Register.
    On July 22, 2022, the U.S. Court of Appeals for the D.C. Circuit 
reversed and remanded, ruling that APHIS had to

[[Page 56931]]

provide notice and an opportunity for comment before withdrawing a rule 
that was available for public inspection, but not yet published in the 
Federal Register. Humane Soc'y of the U.S. v. U.S. Dep't of Agric., 41 
F.4th 564, 565 (D.C. Cir. 2022). The mandate was issued December 13, 
2022.
    On May 12, 2023, the U.S. District Court issued its decision on 
remand without vacatur, but ordered that the 2017 rule would take 
automatic effect if the agency failed to take appropriate remedial 
action: Either promulgate an updated version of the rule, or otherwise 
remedy the deficiency in the withdrawal of the 2017 rule by conducting 
notice and comment on the withdrawal. Humane Soc'y of the U.S. v. U.S. 
Dep't of Agric., No. 19-cv-2458 BAH, 2023 WL 3433970 (D.D.C. May 12, 
2023). APHIS signaled to the Court its intent to remedy the deficiency 
by proposing to withdraw the 2017 final rule through notice and comment 
processes, and a notice of proposed rulemaking to withdraw the 2017 
rule was published in the Federal Register on July 21, 2023 (88 FR 
47068-47071, Docket No. APHIS-2011-0009).
    This current proposal incorporates steps taken in the 2017 HPA 
final rule to eliminate soring. In addition, it provides recent support 
and data emphasizing that the causes of soring are long-standing and 
endemic, and not simply aberrations that occurred in the past. To this 
end, we introduce into this proposal the Horse Protection program's 
latest inspection statistics and a recent study \21\ by the National 
Academy of Sciences (NAS), discussed below, that analyzes the causes of 
soring and its diagnosis in light of the current regulations.
---------------------------------------------------------------------------

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

National Academy of Sciences (NAS) Study

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

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

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

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

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

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

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

[[Page 56932]]

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

Proposed Changes to the Regulations

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

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

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

[[Page 56933]]

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

Definitions

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

[[Page 56934]]

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

Prohibitions Concerning Exhibitors

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

[[Page 56935]]

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

Non-Interference With APHIS Representatives

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

Prohibitions for Disqualified Persons

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

Appeal of Inspection Report

    Section 11.5 currently includes requirements for the management of 
any horse show, exhibition, or horse sale or auction to provide APHIS 
representatives with unlimited access to the grandstands and all other 
premises of any horse show, exhibition, or horse sale or auction, 
including any adjacent areas under their direction, for the purpose of 
inspecting horses or records. Management must also provide an adequate, 
safe, and accessible area for the visual inspection and observation of 
horses. This section also requires persons having custody of any horse 
at any horse show, exhibition, or horse sale or auction to admit any 
APHIS representative or DQP appointed by management to all areas of 
barns, compounds, horse vans, horse trailers, stables, or other grounds 
or related areas at any horse show, exhibition, or horse sale or 
auction, for the purpose of inspecting any such horse at reasonable 
times.
    We propose changing the heading of Sec.  11.5 to read ``Appeal of 
inspection report'' and moving provisions for access to premises and 
records to a new Sec.  11.9. Revised Sec.  11.5 would provide that any 
horse owner, trainer, exhibitor, custodian or transporter may appeal 
inspection report findings all or in part to the Administrator. The 
appeal would require a written statement contesting the inspection 
finding(s) and include any documentation or other information in 
support of the appeal. The appeal would have to be received by the 
Administrator, preferably by electronic mail, or by U.S. mail,\25\ 
within 21 business days of receipt of the inspection report. The 
Administrator would send a final decision, either via electronic mail 
or U.S. mail, to the person requesting the appeal.
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    \25\ Email address: [email protected]. Appeals may also 
be sent via U.S. mail to APHIS, 2150 Centre Ave., Bldg. B, MS 3W-11, 
Fort Collins, CO 80547.
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    We note that in current Sec.  11.25, each HIO is required to 
provide a process in its rulebook, subject to APHIS approval, for 
alleged violators of the regulations to appeal penalties resulting from 
inspections. However, as HIOs would no longer play a role in 
inspections, proposed Sec.  11.5 includes a process for alleged 
violators to appeal penalties resulting from inspections conducted by 
APHIS representatives or HPIs appointed by management.

Pre-Show Review of a Finding of Soring

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

[[Page 56936]]

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

Prohibited Items and Practices

    Current Sec.  11.2 contains prohibitions on the use of certain 
action devices, equipment, pads, substances, and practices on horses at 
any horse show, exhibition, sale or auction covered under the Act.
    The prohibitions are intended to pertain to the devices, practices, 
and substances that are used either to sore horses directly or 
contribute to the act of soring (an example of the latter being a hoof 
pad that hides a sharp object). Reaction to the pain caused by soring 
results in the exaggerated chest-high gait prized in certain classes at 
Tennessee Walking horse and racking horse shows. Chains and other 
devices, especially those that are heavy or have sharp or rough edges, 
can inflict pain and exacerbate soring through repeated strikes to the 
leg while the horse performs, particularly if irritating substances 
have also been applied to the skin. Pads that cause a horse's foot to 
strike the ground at an unnatural angle can also induce pain and soring 
over time, as can heavy pads and horseshoes. Substances can be used to 
mask the pain a sore horse feels long enough to pass inspection, while 
dyes and other substances can hide lesions and other signs of soring on 
the skin. As reflected in the inspection statistics presented above, 
soring is diagnosed almost exclusively at events featuring Tennessee 
Walking horses and racking horses that perform in pads and action 
devices. By comparison, APHIS and DQP inspections at flat-shod events 
in which horses do not wear pads and action devices rarely find soring 
violations.
    We note that the current regulations do not prohibit all devices--
for example, in Sec.  11.2(b), certain rollers, chains, and bell boots 
weighing 6 ounces or less are permitted, as are certain types of pads. 
In proposed Sec.  11.6(b), we allow for the restricted use of some 
items so that events featuring breeds other than Tennessee Walking 
Horses and racking horses may continue using them. APHIS recognizes 
that action devices and pads are sometimes used for purposes that do 
not cause soring during training of Morgans, American Saddlebreds, and 
many other gaited breeds. Applying light chains or other devices on the 
pastern, for example, creates a sensory, or proprioceptive, reaction 
that can stimulate front and rear hoof height without pain, and that on 
rear hooves can increase the range of motion.\26\ While all horse 
breeds are subject to provisions of the Act, soring imparts little to 
no advantage to competitors at these shows, as the gaits on which most 
breeds are evaluated are noticeably distinct from the exaggerated ``big 
lick'' step featured at many Tennessee Walking horses and racking horse 
events.\27\
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    \26\ Clayton, Hilary, ``Rehabilitation for Horses.'' Paper 
presented at American Association of Equine Practitioners, July 
2014.
    \27\ We acknowledge that many owners of Tennessee Walking horses 
and racking horses show their horses in ``flat shod'' classes, 
meaning they do not use the action devices and thick pads associated 
with soring and required as a condition of entry in performance 
classes.

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[[Page 56937]]

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

Action Devices, Boots, Collars

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

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

    NAS' observations regarding action devices and their role in soring 
are consistent with those of an older but still relevant study \29\ 
conducted at the Auburn University School of Veterinary Medicine from 
1978 to 1982, which evaluated the effects of acute and chronic 
inflammatory responses on the front and hind limbs of horses. The 
findings of that study suggest a strong relationship between soring and 
the combined use of action devices and substances. Horses were 
exercised for 2-3 weeks wearing 2-, 4-, and 6-ounce chains, after which 
it was determined that the use of such chains for a duration of 2 to 3 
weeks ``did not produce any harmful effects to the horses' legs, with 
exception to some loss of hair from 6-ounce chains in the pastern 
areas.'' However, in another phase \30\ of the study, it was determined 
that the combined use of prohibited substances and chains on the 
pasterns of horses caused lesions, tissue damage, and visible 
alterations of behavior consistent with soring. Although this phase of 
the study used 10-ounce chains, 4 ounces heavier than what is currently 
allowed, if a horse may be trained sore using 10-ounce chains (or other 
weight and/or substance combinations) and then shown in 6-ounce chains, 
the use of a 6-ounce chain may reasonably be expected to cause the 
horse to experience pain while walking, trotting, or otherwise 
moving.\31\
---------------------------------------------------------------------------

    \29\ Thermography in Diagnosis of Inflammatory Processes in 
Horses in Response to Various Chemical and Physical Factors: Summary 
of the Research from September 1978 to December 1982. Submitted to 
the U.S. Department of Agriculture by Dr. Ram C. Purohit, Associate 
Professor, School of Veterinary Medicine, Auburn University. The 
study is available at the regulations.gov address included under 
ADDRESSES or by contacting the individual listed under FOR FURTHER 
INFORMATION CONTACT above.
    \30\ Phase 7, ``Simultaneous Use of Chemical and Chains for 
Soring Horses''.
    \31\ The NAS study (page 81) also indicated that heavier chains 
and other action devices are typically used when training Tennessee 
Walking Horses.
---------------------------------------------------------------------------

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

[[Page 56938]]

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

Pads, Toe Extensions

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

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

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

Substances

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

[[Page 56939]]

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

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

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

Stewarding

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

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

Dermatologic Changes and the Scar Rule

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

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

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

[[Page 56940]]

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

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

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

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

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

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

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

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

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

[[Page 56941]]

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

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

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

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

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

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

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

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

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

[[Page 56942]]

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

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

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

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

Other Proposed Changes to Prohibitions Concerning Exhibitors

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

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

[[Page 56943]]

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

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

Inspection and Detention of Horses

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

[[Page 56944]]

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

Access to Premises and Records

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

[[Page 56945]]

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

Inspection Space and Facility Requirements

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

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

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

Responsibilities and Liabilities of Management

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

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

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

[[Page 56946]]

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

[[Page 56947]]

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

    \53\ An international standard for regulating the radio 
frequency identification (RFID) of animals.
---------------------------------------------------------------------------

Records Required

    Under proposed Sec.  11.14(a), moved from current Sec.  11.22(a), 
management of any horse show, exhibition, sale, or auction that 
contains Tennessee Walking Horses or racking horses would be required 
to maintain all records for a minimum of 90 days following the closing 
date of the show, exhibition, sale, or auction.\54\ Records also would 
be required to contain the dates and place of the event, as well as the 
name and address of the sponsoring organization, event management, and 
each show judge, as applicable. In addition, management would be 
required to keep a copy of each class or sale sheet containing the 
names of horses, the registration number of the horse (if applicable), 
names and addresses of horse owner, the exhibition number and class 
number or sale number assigned to each horse, the show class or sale 
lot number, and the name and address of the person paying the entry fee 
and entering the horse in the show, exhibition, sale, or auction. 
Copies of the official program would also need to be kept, if such a 
program has been prepared, as well as a copy of the official scoring 
cards for each show containing Tennessee Walking Horses and racking 
horses, to include the place each horse finished in the class. 
Management would also be required to maintain records showing the name 
and any applicable registration name and number of each horse, as well 
as the names and addresses of the owner, the trainer, the custodian, 
the exhibitor and the location of the home barn or other facility where 
the horse is stabled.
---------------------------------------------------------------------------

    \54\ These information collection activities will be scheduled 
for merger into 0579-0056 upon publication of a final rule.
---------------------------------------------------------------------------

    Records required to be kept by event management in proposed Sec.  
11.14(a) would also include those of horses disqualified from 
participating, which are currently required to be kept by management 
and submitted to APHIS under Sec.  11.24(a). These records are required 
to contain the name, exhibition number and class number, or assigned 
sale number, and the registration name and number (if applicable) for 
each horse disqualified or prohibited by management from being shown, 
exhibited, sold or auctioned, and the reasons for such action, as well 
as the name and address of the person designated by the management to 
maintain the records required. Finally, if management has appointed an 
HPI to conduct inspections at the event, the name and address of each 
HPI appointed to conduct the inspections would be required.
    In the current regulations, there are no recordkeeping requirements 
for horses under the care of a licensed veterinarian and requiring 
therapeutic treatment using pads or other restricted or prohibited 
advices. Proposed Sec.  11.14(b) would require that the management of 
any horse show, exhibition, or sale or auction that allows any horse to 
be shown, exhibited or sold with devices, pads, substances, 
applications, or other items restricted under proposed Sec.  11.6 for 
therapeutic treatment must maintain the following information for each 
horse receiving the therapeutic treatment for a period of at least 90 
days following the closing date of the horse show, exhibition, sale, or 
auction: (1) The name, exhibition number and class number, or assigned 
sale number, and the registration name and number (if applicable) for 
each horse receiving therapeutic treatment; (2) the name, address, and 
phone number of the licensed veterinarian providing the therapeutic 
treatment; (3) the State and license number of the licensed 
veterinarian providing the therapeutic treatment; and (4) the name and 
address and phone number of the licensed veterinarian's business. 
Finally, the records would also need to contain a description of the 
disease, injury, or disorder for which the treatment is given, to 
include at minimum the starting date of treatment, prescription or 
design of the treatment plan, and expected length of treatment, 
including an estimate of when it is anticipated to be discontinued. We 
are applying this recordkeeping requirement to all horses participating 
in events covered under the Act to ensure that any such horses under 
therapeutic care involving restricted or prohibited items in 
proposedSec.  11.6 are receiving legitimate veterinary treatment and 
are not being sored.

Inspection of Records

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

Reporting by Management

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

[[Page 56948]]

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

Transportation Requirements

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

Utilization of Inspectors

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

Authorization and Training of Horse Protection Inspectors

    Under the current regulations in Sec.  11.7, HIOs operating APHIS-
certified DQP programs are responsible for selecting, training, 
evaluating, licensing, and disciplining DQPs. When an HIO requests 
certification of its DQP program, APHIS requires the HIO to submit 
criteria it intends to use to select DQP applicants, as well as 
training plans, standards of conduct expected of DQPs, and other 
materials listed in Sec.  11.7(b).
    We propose to have APHIS assume the training and authorization of 
inspectors, which involves removing and reserving Sec.  11.7 and 
proposing new requirements for inspectors in a new Sec.  11.19. Based 
on the conclusions of the USDA-OIG audit and the NAS study discussed 
above, as well as our own observations made in the course of 
administering the Horse Protection program, we determined that the 
current regulations delegating DQP training and licensing 
responsibilities to HIOs were not addressing the conflicts of interest 
and inadequate training resulting in a failure to diagnose sored 
horses, and that APHIS having a direct regulatory role in these 
functions would best achieve the aim of eliminating soring.
    Section 11.7(a) of the current regulations lists the basic 
qualifications required of DQPs. In brief, persons are eligible to be 
licensed as DQPs if they are: (1) licensed veterinarians with equine 
experience, or (2) farriers, horse trainers, or other knowledgeable 
horsemen whose experience and training qualify them for positions as 
HIO stewards or judges and who have been formally trained and licensed 
as DQPs by an APHIS-certified HIO.
    DQPs are not evaluated and licensed by APHIS for their suitability 
as

[[Page 56949]]

inspectors. These tasks are performed by HIOs that APHIS has certified 
based on the criteria in Sec.  11.7(b). Certified HIOs must maintain 
and enforce DQP training requirements and standards of conduct and are 
responsible for ensuring that DQPs follow all regulatory requirements 
pertaining to them throughout Sec.  11.7.
    Proposed Sec.  11.19 includes the qualifications required of 
persons who are applying to APHIS as HPI candidates. Applicants would 
be required to show that they meet all qualifications in two tiers, 
designated as Tier 1 and Tier 2. As we explain below, an applicant must 
meet the Tier 1 requirement as a prerequisite to be further evaluated 
under Tier 2 requirements. We invite comment on the clarity of the 
proposed process, and/or the utility of a tiered process for evaluating 
HPI applicants as proposed, including suggestions for simplifying it or 
replacing it with an altogether different process.
    Prior to authorization, APHIS would ensure that inspectors are 
sufficiently trained and qualified to perform inspections and, once 
authorized, that they observe all standards of conduct and perform 
their duties consistent with enforcing the Act and regulations. All 
applicants would be required to submit an HPI application to APHIS 
using guidance provided on the APHIS Horse Protection Program 
website.\55\
---------------------------------------------------------------------------

    \55\ https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/hpa.
---------------------------------------------------------------------------

    Paragraph (a)(1) of proposed Sec.  11.19 lists the qualifications 
of Tier 1, which would require that the applicant be a veterinarian, 
except that veterinary technicians and persons employed by State and 
local government agencies to enforce laws or regulations pertaining to 
animal welfare may also be authorized if APHIS determines that there is 
an insufficient pool of veterinarians among HPIs and applicants to be 
HPIs.
    Unlike the current DQP eligibility qualifications in Sec.  11.7(a), 
proposed Tier 1 includes no provision for HPI eligibility for farriers, 
horsemen, and other laypersons with industry experience. As expressed 
by the USDA-OIG audit report and NAS study and supported by all major 
veterinary organizations, licensed veterinarians with equine experience 
are best qualified to detect soring in horses. Among other advantages, 
their medical training in anatomy and physiology affords them the 
ability to discern signs of soring in a horse that may be missed by 
experienced inspectors who lack such intensive training. In addition, 
licensed veterinarians in the United States are bound by their 
profession to ethical codes of conduct established by the American 
Veterinary Medical Association (AVMA) and supported by other veterinary 
organizations. Under the AVMA principles for veterinary medical ethics, 
veterinarians are required to avoid conflicts of interest that put 
financial or other considerations ahead of animal welfare and the best 
interests of the animal involved. For these reasons, we are proposing 
the Tier 1 veterinary requirement.
    However, we acknowledge that given the number and geographical 
distribution of veterinarians in the United States, there may be an 
insufficient number of such veterinarians with equine experience 
applying to be authorized as HPIs, with several commenters on the 2016 
proposed rule raising the same concern. Other public comments we 
received rightly noted that veterinarians, when available, could charge 
more for their time than could veterinary technicians or other 
qualified non-governmental persons, resulting in higher costs that may 
be prohibitive for smaller horse shows and exhibitions. Under this 
proposal, shows and sales opting to appoint an APHIS representative 
would incur no such costs.
    The Act itself does not mandate that ``persons qualified to detect 
and diagnose a horse which is sore'' have formal veterinary training, 
and accordingly some commenters on the 2016 rule contended that many 
experienced veterinary technicians and DQPs are as sufficiently able as 
veterinarians to diagnose sored horses. We partially agree, insofar as 
degreed and accredited veterinary technicians possess a level of 
medical training that, when combined with APHIS training, can qualify 
them to be authorized as HPIs. We also believe that making 
authorization available to qualified veterinary technicians under 
proposed Tier 1, if needed, would result in a sufficient pool of 
candidates applying to be HPIs, given that we are also proposing to 
allow management to request inspection directly by APHIS 
representatives. As a result, we would not seek applications from 
persons lacking formal veterinary medical or technical credentials 
regardless of their experience as DQPs. By considering veterinary 
technicians and qualified State and local animal control officials \56\ 
as conditions dictate, we would maintain a sufficient number of trained 
HPIs to meet demand without compromising the levels of inspection 
accuracy and integrity we hope to achieve.
---------------------------------------------------------------------------

    \56\ State and local animal control officials authorized to 
perform inspections would not be doing so as governmental officials, 
but as individuals meeting the qualifications for authorization.
---------------------------------------------------------------------------

    If an applicant meets the qualifications in Tier 1, APHIS would 
then evaluate whether a candidate meets the qualifications listed in 
Tier 2, which we include in proposed paragraph (a)(2). Guidance 
explaining details of these qualifications would be posted to the APHIS 
Horse Protection website.
    Under proposed paragraph (a)(2)(i) of the Tier 2 qualifications, 
APHIS would require the applicant to demonstrate sufficient knowledge 
and experience of equine husbandry and science and applicable 
principles of equine science, welfare, care, and health to determine 
that the applicant can consistently identify equine soring and soring 
practices. The current regulations do not specifically require that 
inspectors demonstrate this knowledge during evaluation of their 
application. While an HIO could establish this application requirement 
as part of its certified DQP program, APHIS cannot confirm that the HIO 
is actually enforcing the requirement under the current regulations.
    In proposed paragraph (a)(2)(ii), we would require that an HPI 
applicant not have been found to have violated any provision of the Act 
or the regulations in this part occurring after July 13, 1976,\57\ or 
has been assessed any fine or civil penalty, or has been the subject of 
a disqualification order in any proceeding involving an alleged 
violation of the Act or regulations occurring after July 13, 1976. This 
requirement is similar to one currently under DQP licensing 
requirements for HIOs in Sec.  11.7(c)(4). As other requirements in 
paragraph (c) pertain to HIOs, they are no longer necessary.
---------------------------------------------------------------------------

    \57\ On this date, the revision to the Horse Protection Act 
establishing the Secretary to prescribe requirements for the 
appointment of persons qualified to detect and diagnose soring was 
promulgated as Public Law 94-360.
---------------------------------------------------------------------------

    Under proposed paragraph (a)(2)(iii), we would require that the 
applicant, as well as the applicant's immediate family and employer, 
not participate in the showing, exhibition, sale, or auction of horses 
or act as a judge or farrier, or be an agent of management. The current 
regulations in Sec.  11.7(d)(7)(i) prohibit a DQP from exhibiting, 
selling, auctioning, or purchasing any horse sold at any horse show, 
sale, or auction at which he or she has been appointed to inspect 
horses, and paragraph (d)(7)(ii) prohibits a DQP from inspecting horses 
at any horse show, exhibition, sale or auction in which a

[[Page 56950]]

horse or horses owned by a member of the DQP's immediate family or the 
DQP's employer are competing or being offered for sale. This proposal 
broadens the scope of prohibited industry relationships for inspectors 
and evaluates such conflicts of interest at the application stage, 
rather than apply them after the inspector has already been authorized 
to conduct inspections.
    Under proposed paragraph (a)(2)(iv), we would require that the 
applicant must not have been disqualified by the Secretary from 
performing diagnosis, detection, and inspection under the Act, which is 
similar to the current requirement in paragraph (c)(6) in which HIOs 
must not license such persons.
    In paragraph (a)(2)(v) of proposed Sec.  11.19, we would require 
that the applicant must not have acted in a manner that calls into 
question the applicant's honesty, professional integrity, reputation, 
practices, and reliability relative to possible authorization as an 
HPI. We believe that such in-depth screening to determine an 
applicant's suitability is only possible if APHIS directs the 
application process and decides whether to authorize a person to 
conduct inspections.
    Applicants screened under Tier 2 would not be considered to be 
authorized as HPIs if any of the following sources of evidence in 
proposed paragraph (a)(2)(V) raises questions about their suitability.
    Under proposed paragraph (a)(2)(v)(A), we would review criminal 
conviction records, if any, that may indicate the applicant lacks the 
honesty, integrity, and reliability to appropriately and effectively 
perform HPI duties.
    Proposed paragraph (a)(2)(v)(B) would allow APHIS to review records 
of the person's actions while participating in Federal, State, or local 
veterinary programs when those actions reflect on the honesty, 
reputation, integrity, and reliability of the applicant.
    Under proposed paragraph (a)(2)(v)(C), APHIS would review judicial 
determinations in any type of litigation adversely reflecting on the 
honesty, reputation, integrity, and reliability of the applicant.
    Finally, under proposed paragraph (a)(2)(v)(D), APHIS would review 
any other evidence reflecting on the honesty, reputation, integrity, 
and reliability of the applicant to perform HPI duties.
    Current Sec.  11.7(b) contains several specific training 
requirements that HIOs are required to provide to DQPs. As APHIS would 
train all HPIs to perform inspection duties, we propose to include in 
paragraph (b) of Sec.  11.19 the requirement that all applicants 
selected as candidates will complete a formal training program 
administered by APHIS prior to authorization. APHIS would train HPIs 
using professionally recognized, science-based approaches to detecting 
soring, many of which are discussed in the above-mentioned NAS study. 
Continual training of HPIs as APHIS determines to be necessary would be 
a condition of maintaining authorization to inspect horses. Additional 
details of the training program would be available on the APHIS Horse 
Protection website.
    In proposed Sec.  11.19, paragraph (c), we would state that APHIS 
will maintain a list of all HPIs on the APHIS Horse Protection website. 
The list would also be available by writing to APHIS via email or U.S. 
mail. Event management would appoint an HPI of their choosing from the 
list.
    As current paragraphs (e), (f), and (g) of Sec.  11.7 pertain to 
requirements based on HIO licensure of DQPs, these would not be 
retained in the regulations. However, paragraph (f) provides a process 
for canceling a DQP license and for appealing such a cancellation. We 
consider it necessary in accordance with the Act to provide similar 
means in this proposal for HPIs to appeal disqualification of their 
authorization. As APHIS would have sole responsibility for granting or 
denying applications for HPI authorization, we would extend the appeals 
process to apply to denials of applications for authorization.
    In proposed Sec.  11.19, we are including an appeals process for 
any applicant whose application for authorization has been denied. We 
are also including a process for authorized HPIs who are being 
disqualified from inspecting horses to receive notice and opportunity 
for a hearing before a final decision for disqualification is rendered. 
We propose that APHIS may deny an applicant for any of the reasons 
outlined in paragraph (a). We also propose that APHIS may permanently 
disqualify an HPI, after notice and opportunity for a hearing, who 
fails to inspect horses in accordance with the procedures prescribed by 
APHIS or otherwise fails to perform duties necessary for APHIS to 
enforce the Act and regulations.
    We propose in paragraph (d)(1) that APHIS may deny an application 
to be authorized as an HPI for any of the reasons outlined in paragraph 
(a) of Sec.  11.19. In such instances, the applicant would be provided 
written notification of the grounds for the denial. The applicant may 
appeal the decision, in writing, within 30 days after receiving the 
written denial notice. The appeal would need to state all of the facts 
and reasons that the person wants the Administrator to consider in 
deciding the appeal. As soon as practicable, the Administrator would 
grant or deny the appeal, in writing, stating the reasons for the 
decision.
    We propose in paragraph (d)(2) that APHIS may permanently 
disqualify any HPI who fails to inspect horses in accordance with the 
procedures prescribed by APHIS or otherwise fails to perform duties 
necessary for APHIS to enforce the Act and regulations, after notice 
and opportunity for a hearing. Requests for hearings and the hearings 
themselves would be in accordance with the Uniform Rules of Practice 
for the Department of Agriculture in subpart H of part 1, subtitle A, 
of 7 CFR.

Alternatives Considered

    Consistent with Executive Orders 12866 and 13563, APHIS has 
considered other alternatives to this proposed action.
    As we have noted, APHIS has implemented numerous program-based 
initiatives within the current regulatory regime in its attempt to 
eliminate soring, including ensuring that DQPs receive the training 
needed to inspect horses responsibly and accurately. From the 2010 
issuance of the OIG audit report to the present, APHIS' efforts to curb 
soring have included issuing enforcement warning letters to HIOs and 
DQPs, increasing oversight of DQP inspections, and sending VMOs to 
observe events having a higher likelihood of sored horses being 
present. APHIS has also worked to build trust with the industry by 
funding joint trainings with HIOs on proper inspection procedures, 
arranging clinics for the public to learn about inspections and ask 
questions, and transitioning primary enforcement to DQPs such that VMOs 
would not re-inspect a horse that a DQP finds noncompliant. In 
addition, APHIS has funded prohibited substance testing and limited the 
number of rule updates to HIOs between show seasons so that DQPs are 
not overly burdened with new information.
    However, given the rates of noncompliance found in inspections 
between 2017 and 2022, our programmatic attempts to strengthen the 
program under the current regulations have not produced meaningful 
reductions in the number of sored horses appearing in shows and other 
HPA-covered events, nor has increased enforcement significantly 
deterred the practice. Even when DQPs have the skills needed to 
accurately diagnose horses for soring, which many demonstrate in the 
presence of APHIS

[[Page 56951]]

representatives, conflicts of interest within the Tennessee Walking 
Horse and racking horse communities continue to encourage soring. These 
conflicts undercut all programmatic alternatives that we have attempted 
within the current regulatory regime.
    We acknowledge that some regulations are in place to address these 
conflicts. Under paragraph (d) of Sec.  11.7, HIOs operating an APHIS-
certified DQP program are required to promulgate standards of conduct, 
including prohibiting DQPs from inspecting at events at which horses 
owned by them are participating. This applies also to members of their 
family or their employers. However, even if the HIO reliably enforces 
these standards, conflicts of interest extend well beyond those of 
family and employer, to business and other relationships among persons 
active in the industry who consider soring their horses a means to gain 
competitive advantage.
    Through this proposed rule, we would amend the regulations to 
transfer from HIOs to APHIS the task of screening, training, and 
authorizing qualified persons to inspect horses for soring. By so 
doing, APHIS would be better positioned to ensure that inspectors are 
screened for conflicts of interest and could take immediate 
disciplinary action if an inspector fails to follow Agency and 
professional codes of ethical conduct. Also, APHIS could directly 
deliver to inspectors the proper training needed to conduct science-
based inspections for soreness as supported in the NAS committee 
report.
    While we believe the amendments in the 2017 HPA final rule that we 
are proposing to withdraw could serve as an effective alternative for 
remedying the problems with enforcement and compliance, and ultimately 
help to eliminate soring, we consider this latest proposal to be the 
preferable alternative. Among other changes, both rulemakings move 
responsibility for training and authorizing inspectors under direct 
APHIS oversight, and both prohibit the pads, devices, substances, and 
actions that have long been used to sore Tennessee Walking Horses and 
racking horses.
    However, unlike the previous rulemaking, this one draws upon the 
findings of the recent NAS study to revise the scar rule so that its 
criteria more accurately describe the dermatological changes associated 
with soring. Also, by affording event management the option of 
appointing an APHIS official instead of an HPI to conduct inspections, 
this proposed rulemaking relieves costs for smaller events choosing to 
appoint an inspector.
    For events that use inspectors, this proposal would require one 
inspector for every 100 horses participating, while the 2017 final rule 
only requires one inspector for every 150 horses. This proposal also 
requires that a farrier be present if more than 100 horses are 
participating and requires that a farrier be on call if there are 100 
or fewer horses. The smaller numbers provide inspectors and farriers 
with a more manageable workload by which they can thoroughly inspect 
and diagnose sore horses.
    This proposal also sets new management requirements to maintain 
information for 90 days on the therapeutic use of pads, substances, and 
other prohibited items on horses at events covered under the Act, and 
requires that management of any covered event notify APHIS at least 30 
days before it begins.
    The 2017 final rule limits this requirement to events featuring 
Tennessee Walking horses and racking horses. These requirements allow 
APHIS to establish a broader record of events covered under the Act, 
allowing for adjustments to enforcement should noncompliance with the 
Act become an issue in current or emerging horse breeds.
    Finally, we note that a discussion of the rationale for proposing 
to withdraw the 2017 HPA final rule is contained in the proposed 
withdrawal itself.
    We believe the changes proposed in this document represent the best 
alternative option that would satisfactorily accomplish the stated 
objectives and minimize impacts on small entities. However, we welcome 
comments from the public on these and other alternatives.
Executive Orders 12866 and 13563 and Regulatory Flexibility Act
    This proposed rule has been determined to be significant for the 
purposes of Executive Order 12866 and, therefore, has been reviewed by 
the Office of Management and Budget.
    We have prepared an economic analysis for this rule. The economic 
analysis provides a cost-benefit analysis, as required by Executive 
Orders 12866 and 13563, which direct agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, and equity). Executive Order 13563 emphasizes the importance 
of quantifying both costs and benefits, of reducing costs, of 
harmonizing rules, and of promoting flexibility. The economic analysis 
also examines the potential economic effects of this rule on small 
entities, as required by the Regulatory Flexibility Act. A summary of 
the economic analysis is included below. Copies of the full analysis 
are also available on the Regulations.gov website (see under ADDRESSES 
in this document for a link to Regulations.gov) or by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT.
    The Horse Protection Act (HPA, or Act, 15 U.S.C. 1821 et seq.) 
prohibits sored horses from participating in horse exhibitions, sales, 
shows, or auctions covered under the Act. Soring is the practice of 
intentionally injuring a horse's front feet and limbs to cause pain so 
intense that the horse lifts its legs quickly to relieve the pain when 
its hooves strike the ground, thereby producing a distinctive high-
stepping gait.
    In September 2010, USDA's Office of Inspector General (OIG) 
released an audit of the Animal Plant and Health Inspection Service's 
(APHIS) enforcement of the HPA. In addition, a 2021 National Academy of 
Sciences (NAS) study examined methods used to inspect horses for 
soreness and made recommendations. The proposed rule is in response to 
several findings and recommendations contained in that audit and in the 
NAS study, as well as in response to data independently obtained by the 
Agency. The objective of the proposed rule is more effective 
enforcement of the HPA.
    The principal proposed amendment to the Horse Protection 
regulations is that APHIS would screen, train and authorize qualified 
persons to conduct inspections at horse shows, horse exhibitions, horse 
sales, and horse auctions to ensure compliance with the HPA. APHIS 
would authorize applicants, preferably veterinarians, as Horse 
Protection Inspectors (HPI) \58\ after screening them for potential 
conflicts of interest and conducting training. APHIS would also develop 
a process for denying an application or disqualifying a person 
authorized to inspect horses who does not meet our qualifications or 
who otherwise fails in duties or conduct under the Act or regulations. 
We also propose that event management may elect instead to have an 
APHIS representative conduct inspections. The proposed rule would 
remove all regulatory responsibilities and requirements for horse 
industry organizations and associations (HIOs).
---------------------------------------------------------------------------

    \58\ The term Designated Qualified Persons or DQPs, would be 
replaced by HPIs, or horse protection inspectors, under the proposed 
rule.

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

[[Page 56952]]

    Currently, horse shows either assume responsibility for conducting 
preshow inspections for evidence of soring or contract with an APHIS-
certified HIO to provide DQPs to conduct inspections. However, the OIG 
audit discovered conflicts of interest between DQPs, the HIOs that 
license and hire them, and organizers of the shows and exhibitions that 
contract with HIOs to provide DQPs. The OIG audit noted that at times 
DQPs fail to inspect horses adequately or to issue violations in 
accordance with the regulations. Concurring with the findings of the 
OIG audit, the NAS study committee concluded that some horses 
experiencing soreness are not being identified during inspections and 
strongly recommended that use of DQPs for inspections under the current 
program be discontinued.
    Inspection data compiled by APHIS from fiscal year (FY) 2017 to 
2022 show that inconsistencies persist in the number of violations 
detected by APHIS officials and those issued by DQPs inspecting horses. 
During this period, APHIS attended about 16 percent of all HPA-covered 
events featuring Tennessee Walking Horses, racking horses, and other 
breeds at which horse industry DQPs conducted inspections, performance 
as well as flat-shod classes. While APHIS attended only a fraction of 
the events at which DQPs were appointed to inspect horses, APHIS 
consistently reported higher rates of noncompliance at these events 
based on its VMO inspection findings. Most horses inspected by APHIS 
officials at these events were chosen at random, although APHIS chose 
to inspect some horses for which a suspicion of soring was warranted.
    Designated Qualified Persons consistently reported higher rates of 
noncompliance when APHIS officials were in attendance than when they 
were not. In FY 2021, for example, if only horses wearing ``performance 
packages'' (i.e., a padded horse) are considered, APHIS officials 
detected 158 instances of noncompliance with the HPA out of the 398 
horses APHIS inspected at the 17 events attended, resulting in close to 
a 40 percent rate of noncompliance for performance horses. In contrast, 
of the 207 events attended and inspected only by DQPs during the same 
period, DQPs detected just 321 instances of noncompliance with the HPA 
out of the 11,825 performance horses they inspected, recording only a 
1.9 percent rate of noncompliance when APHIS officials were not present 
and 7.1 percent when they were. Also notable is that the rate of 
noncompliance detected for horses wearing performance packages was 
significantly and consistently higher than that detected for flat-shod 
horses.
    In addition, the proposed rule would also prohibit non-therapeutic 
pads and action devices at all events involving Tennessee Walking 
Horses and racking horses, as these items are used to induce or hide 
soring. The proposed rule would also update the scar rule by including 
language that better describes visible dermatologic changes and stating 
that the changes do not have to be bilateral.
    An additional amendment to the rule would also require a farrier to 
be present at shows with 100 or more horses and on-call for shows with 
fewer than 100 horses if the management of the shows utilize an AHPIS 
representative or HPI. We welcome public comments on the costs 
associated with having a farrier at the shows and on-call. Also, for 
horse shows that utilize an HPI or APHIS representative, if there are 
more than 100 horses participating in the show, there must be an 
additional HPI.
    The prohibition of pads and action devices does not impose costs on 
show management or participants. Of these proposed amendments to the 
Horse Protection regulations, only the amendments requiring a farrier 
to be present at a show of more than 100 horses, or on call if fewer 
than 100 horses are participating, may result in additional costs such 
as record keeping for show management and participants.
    Given that event managers may choose to have an APHIS inspector at 
no cost to them, the proposed rule would impose no additional required 
costs to horse show management in terms of inspectors.
    Currently, horse shows either assume responsibility for conducting 
preshow inspections for evidence of soring or contract with an APHIS-
approved Horse Industry Organization (HIO) to provide Designated 
Qualified Persons to conduct inspections. HIOs may be able to pass this 
cost on to the exhibitors and participants in the show. Under the 
proposed rule, if an APHIS inspector is used, they would no longer have 
to bear the costs associated with having inspectors at the shows. This 
could potentially result in cost savings to the HIOs and the 
exhibitors. The cost of having inspectors at the shows varies by region 
and ranges from $350 to $23,000 with the average being $700 to $800 per 
show.
    Conversely, it is possible that HPIs will charge more for their 
inspections than DQPs currently do. The rate that HPIs will charge for 
their services under the proposed rule, as compared to the current rate 
of compensation for DQPs mentioned above, is unknown because the rate 
is negotiated between the inspectors and the management that contracts 
for their services, and thus not within APHIS' purview. Management may 
also be able to pass the costs of having inspectors at the shows on to 
the exhibitors. We welcome public comments to the extent that there may 
be additional costs or cost savings associated with this proposed rule.
    Based on the estimates of an expert elicitation \59\ commissioned 
by APHIS, the cost of services provided per show by veterinarians, 
farriers, and inspectors ranges from a few hundred to several thousand 
dollars. Because this analysis was conducted several years ago, we use 
the consumer price index (CPI) to convert the costs to 2021 dollars. 
APHIS believes these estimates to be reasonably accurate. However, we 
acknowledge that there is some level of uncertainty, as the structure 
of the industry may have changed. In addition, we do not know the 
impact that the pandemic may have had on the industry. We welcome 
comments which would provide better insight and detailed information on 
the components of the costs, if applicable. The incidence of the costs 
to the show of the farrier would depend on their ability to pass the 
costs along to participants or other entities involved with the shows. 
In addition, many of the entities may already have farriers present at 
shows, auctions, and sales. Many, if not most, of the entities that may 
be affected by this proposed rule are small.
---------------------------------------------------------------------------

    \59\ Expert Elicitation in Support of the Economic Analysis of 
the Tennessee Walking and Racking Horse Industry; RTI International, 
November 2012 3040 Cornwallis Road, Research Triangle Park, NC 
27709.
---------------------------------------------------------------------------

    The proposed rule would result in foregone revenue for most current 
DQPs, who would not meet APHIS' requirements for HPIs under the terms 
of the proposed rule. As noted above, the average cost of having 
inspectors at shows is $700 to $800 per show. With 59 currently 
authorized DQPs and 300 shows on average per year, this suggests that 
DQP income is supplemental, rather than a primary source of revenue, 
for most DQPs. Additionally, APHIS anticipates 30 new initial 
applications from parties interested in becoming HPIs under the 
proposed requirements. For new HPIs who were not previously DQPs, this 
rule would result in new income. We request public comment on this 
matter.
    While the proposed rule would result in better enforcement of the 
HPA, implementation of the proposed changes would result in additional 
costs to APHIS in terms of conducting inspections, screening, and 
training potential HPIs. We expect that APHIS

[[Page 56953]]

costs would increase by approximately $6.4 million. This assumes that 
APHIS inspectors would attend approximately 300 shows per year. Over 
the last 5 years, there have been an average of 226 shows per year. In 
addition, the industry and APHIS may incur additional recordkeeping 
costs of $47,000 and $127,000, respectively. Training costs would 
include renting a training horse and employee travel. The average 3-day 
horse rental is $450 and the travel cost per employee is $1,900. APHIS 
would not charge a fee for training; however, the participants may have 
to pay their travel expenses to and from training and lodging. If funds 
are available, APHIS would pay travel expenses and other costs 
associated with attending training.
    The benefits of the proposed rule are expected to justify the 
costs. The proposed changes to the Horse Protection regulations would 
promote the humane treatment of Tennessee Walking Horses and racking 
horses by more effectively ensuring that those horses that participate 
in exhibitions, sales, shows, or auctions covered by the HPA are not 
sored. This qualitative benefit, enhancing animal welfare, is likely to 
result in greater public confidence that the animals are being treated 
humanely.
    The proposed rule is not expected to adversely impact the 
communities in which shows are held because Tennessee Walking Horse and 
racking horse shows are expected to continue. Owners are motivated to 
show their prized horses and are likely to continue participating in 
shows. Better enforcement of the HPA is expected to also benefit shows 
and participants by improving the reputation of the Tennessee Walking 
Horse and racking horse industry. Participation in events may increase 
if the proposed rule were to result in increased confidence by owners 
that individuals who intentionally sore horses to gain a competitive 
advantage are likely to be prevented from participating. Management of 
horse shows, exhibitions, sales, and auctions would also benefit from 
no longer having to bear the costs of compensating inspectors if they 
use APHIS inspectors.
    In an attempt to eliminate soring, APHIS considered several 
alternatives to the proposed rule. These include programmatic changes 
such as increased training, issuing enforcement warning letters to HIOs 
and DQPs, increasing oversight of DQP inspections, and sending VMOs to 
observe events having a higher likelihood of sored horses being 
present. APHIS has also worked to build trust with the industry by 
funding joint trainings with HIOs on proper inspection procedures, 
arranging clinics for the public to learn about inspections and ask 
questions, and transitioning primary enforcement to DQPs such that VMOs 
would not re-inspect a horse that a DQP finds noncompliant. In 
addition, APHIS has funded prohibited substance testing and limited the 
number of rule updates to HIOs between show seasons so that DQPs are 
not overly burdened with new information. These non-regulatory 
solutions have not meaningfully decreased detections of soring, 
however.
    One alternative that we also considered was to eliminate the use of 
non-APHIS inspectors and to limit inspectors to APHIS VMOs. While this 
approach would address conflicts of interest and allow APHIS to have a 
direct role in managing inspections, we determined that the 
availability of inspectors could be subject to number of VMOs available 
at any given time and their geographic distribution. Further, section 4 
(15 U.S.C. 1823) of the Act provides for ``the appointment by the 
management of any horse show, horse exhibition, or horse sale or 
auction of persons qualified to detect and diagnose a horse which is 
sore . . .,'' which precludes assigning an inspector to an event and 
eliminating any element of choice for event management. Under this 
proposal, management would be able to choose to appoint an APHIS 
representative or an APHIS-authorized inspector.
    Another alternative considered was implementing our 2017 final rule 
to revise the HPA regulations. However, we consider this proposed rule 
preferable to that rule for several reasons. Among them, this rule 
provides that management may request direct APHIS inspection of a show 
at no cost to management, an option not provided for in the 2017 final 
rule despite comments that HPIs could be cost-prohibitive for smaller 
shows.
    We invite public comments on these and other alternatives that may 
achieve the desired policy objective of the proposed rule.
    The entities affected by this rule are likely small by Small 
Business Administration standards. We invite public comments on the 
potential impacts on the entities that may be affected by this rule.
Executive Order 13175
    This proposed rule has been reviewed in accordance with the 
requirements of Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments.'' Executive Order 13175 requires 
Federal agencies to consult and coordinate with tribes on a government-
to-government basis on policies that have tribal implications, 
including regulations, legislative comments or proposed legislation, 
and other policy statements or actions that have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes.
    APHIS has determined that this proposed rule does not, to our 
knowledge, have tribal implications that require formal tribal 
consultation under Executive Order 13175. To engage Tribal nations on 
this rulemaking, APHIS hosted a tribal webinar to discuss the proposed 
rule, with four attendees participating and no tribal comment. If a 
Tribe requests consultation, APHIS will work with the Office of Tribal 
Relations to ensure meaningful consultation is provided where changes, 
additions and modifications identified herein are not expressly 
mandated by Congress.
Executive Order 12372
    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 2 CFR chapter IV.)
Executive Order 12988
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. It is not intended to have retroactive effect. 
The Act does not provide administrative procedures which must be 
exhausted prior to a judicial challenge to the provisions of this rule.
Paperwork Reduction Act
    Many of the activities described in this proposed rule are 
currently approved under OMB control number 0579-0056, including the 
requirement that the management of any event that contains Tennessee 
Walking Horses or racking horses maintain for at least 90 days 
following the closing date of the event all pertinent records in Sec.  
11.22(a), and that within 5 days following the conclusion of any event 
containing Tennessee Walking Horses or racking horses, event management 
must submit to APHIS the information required by Sec.  11.22(a) for 
each horse excused or disqualified by management or its 
representatives. In addition, there are seven new information 
collection and reporting activities. Therefore, in accordance with 
section 3507(d) of the

[[Page 56954]]

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the new 
activities and their burden associated with this proposed rule have 
been submitted to OMB as a new information collection for approval. 
After a final rule is published, this information collection request 
will be scheduled for merger into 0579-0056 in the future.
    Written comments and recommendations for the proposed information 
collection should be sent within 60 days of publication of this notice 
to www.reginfo.gov/public/do/PRAMain. Find this particular information 
collection by selecting ``Currently under 60-day Review-Open for Public 
Comments'' or by using the search function. Please send a copy of your 
comments to: (1) Docket No. APHIS-2022-0004, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, 
Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, Room 
404-W, 14th Street and Independence Avenue SW, Washington, DC 20250.
    Administering the Horse Protection Act (HPA) requires the use of 
several information collection activities that are currently approved 
under 0579-0056. The proposed changes to the regulations result in the 
creation of new reportable activities, as previously mentioned. These 
activities and any additional ones announced in the final rule 
resulting from public comment will be scheduled for merger into 0579-
0056 after OMB approval.
    The seven new activities in this proposed rule change are as 
follows:
     Sec.  11.13(b)(5)--Event managers will be permitted to 
submit unsatisfactory performance notices against HPIs performing 
inspections. APHIS estimates there will be 5 responses per year with 1 
hour of burden per response.
     Sec.  11.14(b)--Managers of any horse show, horse 
exhibition, horse sale, or horse auction that allows any horse to be 
shown, exhibited or sold with prohibitions for therapeutic treatment 
will be required to maintain certain information for each horse 
receiving the therapeutic treatment for a period of at least 90 days 
following the closing date of a show, exhibition, sale, or auction. 
Based on the APHIS Horse Protection program's knowledge of the 
frequency of therapeutic treatments used on horses participating in 
prior covered events, APHIS estimates there will be 50 responses per 
year with 1 hour of burden per response. Managers will not have to 
maintain such records if no horses undergoing therapeutic treatments 
are in the event.
     Sec.  11.16(a)--Managers of any such show, exhibition, 
sale, or auction will be required to provide the Administrator 
information of the event by mail, fax, or electronic means such as 
email at least 30 days before any horse show, horse exhibition, horse 
sale, or horse auction is scheduled to begin. Such notification would 
have to include information about the show, information about the 
anticipated or known number of entries and whether management will 
allow any horse to be shown, exhibited, or sold with prohibitions under 
proposed Sec.  11.6 for therapeutic treatment. Finally, the 
notification will include a request to appoint an APHIS representative 
if one is needed. This requirement has been added to give APHIS advance 
notice of the event and sufficient time to arrange for an APHIS 
representative to be present to inspect horses, if requested by 
management. APHIS estimates there will be 450 shows per year with 30 
minutes of burden per response.
     Sec.  11.16(a)(6)--If neither an APHIS representative nor 
an HPI is available on the date of the horse show, horse exhibition, 
horse sale, or horse auction, event management may request a variance. 
It must be submitted by mail, fax, or electronic means such as email to 
the Deputy Administrator of Animal Care. APHIS estimates there will be 
20 requests per year with 1 hour of burden per request.
     Sec.  11.16(b)--Managers of any such show, exhibition, 
sale, or auction will be required to provide any changes to the event 
information submitted to the Administrator at least 15 days before the 
event is to begin. APHIS estimates there will be 300 shows per year 
with 30 minutes of burden per response.
     Sec.  11.16(c)--Event managers of any horse show, horse 
exhibition, horse sale, or horse auction that contains Tennessee 
Walking Horses or racking horses must submit to APHIS within 5 days 
after the event's conclusion the information required to be maintained 
by Sec.  11.14. Event information already submitted to APHIS under 
Sec.  11.16(a) does not need to be sent again. APHIS estimates there 
will be 300 shows per year with 30 minutes of burden per response.
     Sec.  11.19(a)--APHIS will authorize and train Horse 
Protection Inspectors. Prospective candidates must submit an 
application to APHIS and will be evaluated using a 2-tier system of 
qualifications. APHIS estimates there will be 30 applicants per year 
with an estimated 1 hour of burden per application.
    The proposed changes to the regulations in 9 CFR part 11 authorized 
by the HPA also include removing regulatory requirements for horse 
industry organizations and associations and eliminating the role of 
Designated Qualified Persons as inspectors at horse shows, exhibitions, 
sales, and auctions. The burden for these will be transferred Horse 
Protection Inspectors authorized and trained by APHIS. Activities 
related to event schedules are event-driven so the total number of 
estimated responses and burden hours will remain unchanged.
    We are soliciting comments from the public and others concerning 
our proposed information collection and recordkeeping requirements. 
These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public burden for this collection of 
information is estimated to average 0.55 hours per response.
    Respondents: Managers of horse shows, exhibitions, sales, or 
auctions; veterinarians.
    Estimated annual number of respondents: 530.
    Estimated annual number of responses per respondent: 3.
    Estimated annual number of responses: 1,155.
    A copy of the information collection may be viewed on the 
Regulations.gov website or in our reading room. (A link to 
Regulations.gov and information on the location and hours of the 
reading room are provided under the heading ADDRESSES at the beginning 
of this proposed rule.) Information about the information collection 
process may be obtained from Mr. Joseph Moxey, APHIS' Paperwork 
Reduction Act Coordinator, at (301) 851-2483. APHIS will respond to any 
information collection-related comments in the final rule. All comments 
will also become a matter of public record.

[[Page 56955]]

E-Government Act Compliance
    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. APHIS estimates that all of the total responses can be 
processed electronically by email or fax. Respondents are free to 
maintain required records as best suited for their organization. 
Details about specific forms for reportable activities can be found in 
the information collection request supporting statement.
    For assistance with E-Government Act compliance related to this 
proposed rule, please contact Mr. Joseph Moxey, APHIS' Paperwork 
Reduction Act Coordinator, at (301) 851-2483, or the person listed 
under FOR FURTHER INFORMATION CONTACT.

List of Subjects in 9 CFR Part 11

    Animal welfare, Horses, Reporting and recordkeeping requirements.
    Accordingly, we propose to revise 9 CFR part 11 to read as follows:

PART 11--HORSE PROTECTION REGULATIONS

Sec.
11.1 Definitions.
11.2 [Reserved]
11.3 Non-interference with APHIS representatives and HPIs.
11.4 Owners, trainers, exhibitors, custodians, transporters, and any 
other person who has been disqualified.
11.5 Appeal of inspection report.
11.6 Prohibitions concerning exhibitors.
11.7 [Reserved]
11.8 Inspection and detention of horses.
11.9 Access to premises and records.
11.10 Inspection space and facility requirements.
11.11-11.12 [Reserved]
11.13 Responsibilities and liabilities of management.
11.14 Records required and disposition thereof.
11.15 Inspection of records.
11.16 Reporting by management.
11.17 Requirements concerning persons involved in transportation of 
certain horses.
11.18 Utilization of inspectors.
11.19 Authorization and training of Horse Protection Inspectors.

    Authority:  15 U.S.C. 1823-1825 and 1828; 7 CFR 2.22, 2.80, and 
371.7.


Sec.  11.1  Definitions.

    For the purpose of this part, unless the context otherwise 
requires, the following terms shall have the meanings assigned to them 
in this section. The singular form shall also impart the plural.
    Act means the Horse Protection Act of 1970 (Pub. L. 91-540) as 
amended by the Horse Protection Act Amendments of 1976 (Pub. L. 94-
360), 15 U.S.C. 1821 et seq., and any legislation amendatory thereof.
    Action device means 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.
    Administrator means the Administrator, Animal and Plant Health 
Inspection Service, or any person authorized to act for the 
Administrator. Mail for the Administrator should be sent to the Animal 
and Plant Health Inspection Service, Animal Care/Horse Protection, 2150 
Centre Avenue, Building B, Mailstop 3W11, Fort Collins, CO 80526-8117. 
Electronic mail for the Administrator should be sent to 
[email protected].
    Animal and Plant Health Inspection Service (APHIS) means the Animal 
and Plant Health Inspection Service of the United States Department of 
Agriculture.
    APHIS representative means any employee or official of APHIS.
    Custodian means any person who has initial control of and presents 
a horse for inspection at any horse show, exhibition, sale, or auction. 
The custodian must be able to provide information about the horse that 
is required by this part.
    Day(s) means business days, i.e., days other than weekends and 
Federal holidays.
    Department means the United States Department of Agriculture 
(USDA).
    Event manager means the person who has been delegated primary 
authority by a sponsoring organization for managing a horse show, horse 
exhibition, horse sale, or horse auction.
    Exhibitor means:
    (1) Any person who enters any horse, any person who allows his or 
her horse to be entered, or any person who directs or allows any horse 
in his or her custody or under his or her direction, control or 
supervision to be entered in any horse show or horse exhibition;
    (2) Any person who shows or exhibits any horse, any person who 
allows his or her horse to be shown or exhibited, or any person who 
directs or allows any horse in his or her custody or under his or her 
direction, control, or supervision to be shown or exhibited in any 
horse show or horse exhibition;
    (3) Any person who enters or presents any horse for sale or 
auction, any person who allows his or her horse to be entered or 
presented for sale or auction, or any person who allows any horse in 
his or her custody or under his or her direction, control, or 
supervision to be entered or presented for sale or auction in any horse 
sale or auction; or
    (4) Any person who sells or auctions any horse, any person who 
allows his or her horse to be sold or auctioned, or any person who 
directs or allows any horse in his or her custody or under his or her 
direction, control, or supervision to be sold or auctioned.
    Horse means any member of the species Equus caballus.
    Horse exhibition means a public display of any horses, singly or in 
groups, but not in competition. The term does not include events where 
speed is the prime factor, rodeo events, parades, or trail rides.
    Horse Protection Inspector (HPI) means a person meeting the 
qualifications in Sec.  11.19 whom the Administrator has authorized as 
an HPI and who may be appointed by management or a representative of 
management of any horse show, horse exhibition, horse sale or horse 
auction under section 4 of the Act (15 U.S.C. 1823) 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.
    Horse sale or horse auction means any event, public or private, at 
which horses are sold or auctioned, regardless of whether or not said 
horses are exhibited prior to or during the sale or auction.
    Horse show means a public display of any horses, in competition, 
except events where speed is the prime factor, rodeo events, parades, 
or trail rides.
    Inspection means any visual, physical, and diagnostic means 
approved by APHIS to determine compliance with the Act and regulations. 
Such inspection may include, but is not limited to, visual examination 
of a horse and review of records, physical examination of a horse, 
including touching, rubbing, palpating, and observation of vital signs, 
and the use of any diagnostic device or instrument, and may require the 
removal of any shoe or any other equipment, substance, or paraphernalia 
from the horse when deemed necessary by the professional conducting 
such inspection.
    Local area means an area within a 10-mile radius of the horse show, 
horse exhibition, horse sale, or horse auction.
    Management means any person or persons who organize, exercise 
control

[[Page 56956]]

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 event manager.
    Participate means engaging in any activity, either directly or 
through an agent, beyond that of a spectator in connection with a horse 
show, horse exhibition, horse sale, or horse auction, and includes, 
without limitation, transporting, or arranging for the transportation 
of, horses to or from equine events, personally giving instructions to 
exhibitors, being present in the warm-up or inspection areas or in any 
area where spectators are not allowed, and financing the participation 
of others in equine events.
    Person means any individual, corporation, company, association, 
firm, partnership, society, organization, joint stock company, State or 
local government agency, or other legal entity.
    Secretary means the Secretary of Agriculture or anyone who has 
heretofore or may hereafter be delegated authority to act in his or her 
stead.
    Sore when used to describe a horse means:
    (1) An irritating or blistering agent has been applied, internally 
or externally, by a person to any limb of a horse;
    (2) Any burn, cut, or laceration has been inflicted by a person on 
any limb of a horse;
    (3) Any tack, nail, screw, or chemical agent has been injected by a 
person into or used on any limb of a horse;
    (4) Any other substance or device has been used by a person on any 
limb of a horse or a person has engaged in a practice involving a 
horse, and, as a result of such application, infliction, injection, 
use, or practice, such horse suffers, or can reasonably be expected to 
suffer, physical pain or distress, inflammation, or lameness when 
walking, trotting, or otherwise moving, 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.
    Sponsoring organization means 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.
    State means any of the several States, the District of Columbia, 
the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, 
American Samoa, Northern Mariana Islands or the Trust Territory of the 
Pacific Islands.
    Therapeutic treatment means 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.


Sec.  11.2  [Reserved]


Sec.  11.3  Non-interference with APHIS representatives and HPIs.

    No person shall assault, resist, oppose, impede, intimidate, 
threaten, or interfere with APHIS representatives or HPIs appointed by 
management, or in any way influence attendees of a horse show, horse 
exhibition, horse sale, or horse auction or other individuals to do the 
same.


Sec.  11.4  Owners, trainers, exhibitors, custodians, transporters, and 
any other person who has been disqualified.

    Any person who has been disqualified by the Secretary from 
participating in any horse show, horse exhibition, horse sale, or horse 
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.


Sec.  11.5  Appeal of inspection report.

    Any horse owner, trainer, exhibitor, custodian or transporter may 
appeal all or part of the inspection findings in an inspection report 
to the Administrator. To appeal, the horse owner, trainer, exhibitor, 
custodian or transporter must send a written statement contesting the 
inspection finding(s) and include any documentation or other 
information in support of the appeal. To receive consideration, the 
appeal must be received \1\ by the Administrator, preferably by 
electronic mail, to [email protected] within 21 business days of 
the date the horse owner, trainer, exhibitor, custodian or transporter 
received the inspection report that is the subject of the appeal. The 
Administrator will send a final decision, in writing via either 
electronic mail or postal mail, to the person requesting the appeal.
---------------------------------------------------------------------------

    \1\ Appeals may also be sent by U.S. mail to APHIS, 2150 Centre 
Ave, Bldg. B, MS 3W-11, Fort Collins, CO 80547.
---------------------------------------------------------------------------


Sec.  11.6  Prohibitions concerning exhibitors.

    (a) General prohibitions for all horses. Notwithstanding the 
provisions of this section, no action device, method, practice, or 
substance shall be used with respect to 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 or is 
otherwise used to mask previous and/or ongoing soring.
    (b) Prohibited devices, equipment, and practices. The use of the 
following action devices, equipment, or practices on any horse, at any 
horse show, exhibition, sale, or auction is prohibited:
    (1) More than one action device permitted under this section on any 
limb of a horse.
    (2) 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.
    (3) Chains weighing more than 6 ounces each, including the weight 
of the fastener.
    (4) Chains with links that are not of uniform size, weight, and 
configuration; and chains that have twisted links or double links.
    (5) Chains that have drop links on any horse that is being ridden, 
worked on a lead, or otherwise worked out or moved about.
    (6) 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.
    (7) 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.
    (8) 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.
    (9) 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.
    (10) 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.
    (11) 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 shall be

[[Page 56957]]

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.
    (12) Toe length that does not exceed the height of the heel by 1 
inch or more. The length of the toe shall 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 shall 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 shall be added to the height of 
the heel in determining the heel/toe ratio.
    (13) Pads that are not made of leather, plastic, or a similar 
pliant material.
    (14) 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. 
Acrylic and other hardening substances are prohibited as hoof packing.
    (15) Single or double rocker-bars on the bottom surface of 
horseshoes which extend more than \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.
    (16) Metal hoof bands, such as used to anchor or strengthen pads 
and shoes, placed less than \1/2\ inch below the coronet band.
    (17) 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.
    (18) 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.
    (19) Shoeing a horse, trimming a horse's hoof, or paring the frog 
or sole 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. 
Bruising of the hoof or any other method of pressure shoeing is also 
prohibited.
    (20) 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. 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 prohibited.
    (21) The use of whips, cigarette smoke, or other stewarding 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 is prohibited.
    (22) The forelimbs and hindlimbs of the horse must be free of 
dermatologic conditions that are indicative of soring. Examples of such 
dermatologic conditions include, but are not limited to, irritation, 
moisture, edema, swelling, redness, epidermal thickening, loss of hair 
(patchy or diffuse) or other evidence of inflammation. Any horse found 
to have one or more of the dermatologic conditions set forth herein 
shall be presumed to be ``sore'' and be subject to all prohibitions of 
section 6 (15 U.S.C. 1825) of the Act.
    (c) Specific prohibitions for Tennessee Walking Horses and racking 
horses. (1) All action devices are prohibited on any Tennessee Walking 
Horse or racking horse at any horse show, horse exhibition, horse sale, 
or horse auction.
    (2) All artificial extension of the toe length is prohibited on any 
Tennessee Walking Horse or racking horse at any horse show, horse 
exhibition, horse sale, or horse auction, unless such horse has been 
prescribed and is receiving therapeutic treatment using artificial 
extension of the toe length as approved in writing by a licensed 
veterinarian.
    (3) All pads and wedges are prohibited on any Tennessee Walking 
Horse or racking horse at any horse show, exhibition, sale, or auction, 
unless such horse has been prescribed and is receiving therapeutic 
treatment using pads or wedges as approved in writing by a licensed 
veterinarian.
    (4) All substances are prohibited on the extremities above the hoof 
of any Tennessee Walking Horse or racking horse entered for the purpose 
of being shown or exhibited, sold, auctioned, or offered for sale in or 
on the grounds of any horse show, horse exhibition, or horse sale or 
auction.
    (d) Competition restrictions--2-Year-old horses. Horse show or 
horse exhibition workouts or performances of 2-year-old Tennessee 
Walking Horses and racking horses and working exhibitions of 2-year-old 
Tennessee Walking Horses and racking horses (horses eligible to be 
shown or exhibited in 2-year-old classes) at horse sales or horse 
auctions that exceed a total of 10 minutes continuous workout or 
performance without a minimum 5-minute rest period between the first 
such 10-minute period and the second such 10-minute period, and, more 
than two such 10-minute periods per performance, class, or workout are 
prohibited.
    (e) Information requirements--horse related. Failing to provide 
information or providing any false or misleading information required 
by the Act or regulations or requested by APHIS representatives or HPIs 
appointed by management, by any person that enters, owns, trains, 
shows, exhibits, transports or sells or has custody of, or direction or 
control over any horse shown, exhibited, sold, or auctioned or entered 
for the purpose of being shown, exhibited, sold, or auctioned at any 
horse show, horse exhibition, horse sale, or horse auction is 
prohibited and may result in disqualification under Sec.  11.13. Such 
information shall include, but is not limited to: Information 
concerning the name, any applicable registration name and number, 
markings, sex, age, and legal ownership of the horse; the name and 
address of the horse's training and/or stabling facilities; the name 
and address of the owner, trainer, rider, custodian, any other 
exhibitor, or other legal entity bearing responsibility for the horse; 
the class in which the horse is entered or shown; the exhibitor 
identification number; and, any other information reasonably related to 
the identification, ownership, control, direction, or supervision of 
any such horse.


Sec.  11.7  [Reserved]


Sec.  11.8  Inspection and detention of horses.

    (a) For the purpose of effective enforcement of the Act: Each horse 
owner, exhibitor, trainer, or other person having custody of, or 
responsibility for, any horse at any horse show, horse exhibition, 
horse sale, or horse auction, shall allow any APHIS representative or 
HPI appointed by management to inspect such horse at all reasonable 
times and places the APHIS representative or HPI may designate. Such 
inspections may be required of any horse which is stabled, loaded on a 
trailer, being prepared for show, exhibition, or sale or auction, being 
exercised or otherwise on the grounds of, or present at, any horse 
show, horse exhibition, or horse sale or horse auction, whether or not 
such horse has or has not been shown, exhibited, or sold or auctioned, 
or has or has not been entered for the purpose of being shown

[[Page 56958]]

or exhibited or offered for sale or auction at any such horse show, 
horse exhibition, or horse sale or horse auction. APHIS representatives 
and HPIs appointed by management will not generally or routinely delay 
or interrupt actual individual classes or performances at horse shows, 
horse exhibitions, or horse sales or auctions for the purpose of 
examining horses, but they may do so in extraordinary situations, such 
as but not limited to, lack of proper facilities for inspection, 
refusal of management to cooperate with inspection efforts, reason to 
believe that failure to immediately perform inspection may result in 
the loss, removal, or masking of any evidence of a violation of the Act 
or the regulations, or a request by management that such inspections be 
performed by an APHIS representative.
    (b) When any APHIS representative or HPI appointed by management 
notifies the owner, exhibitor, trainer, or other person having custody 
of or responsibility for a horse at any horse show, horse exhibition, 
or horse sale or horse auction that APHIS desires to inspect such 
horse, it shall not be moved from the horse show, horse exhibition, or 
horse sale or horse auction until such inspection has been completed 
and the horse has been released by an APHIS representative.
    (c) For the purpose of inspection, testing, or taking of evidence, 
APHIS representatives may detain for a period not to exceed 24 hours 
any horse, at any horse show, horse exhibition, or horse sale or horse 
auction, which is sore or which an APHIS representative has probable 
cause to believe is sore. Such detained horse may be marked for 
identification and any such identifying markings shall not be removed 
by any person other than an APHIS representative.
    (d) Detained horses shall be kept under the supervision of an APHIS 
representative or secured under an official USDA seal or seals in a 
horse stall, horse trailer, or other facility to which access shall be 
limited. It shall be the policy of APHIS to have at least one 
representative present in the immediate detention area when a horse is 
being held in detention. The official USDA seal or seals may not be 
broken or removed by any person other than an APHIS representative, 
unless:
    (1) The life or well-being of the detained horse is immediately 
endangered by fire, flood, windstorm, or other dire circumstances that 
are beyond human control.
    (2) The detained horse is in need of such immediate veterinary 
attention that its life may be in peril before an APHIS representative 
can be located.
    (3) The horse has been detained for a maximum 24-hour detention 
period, and an APHIS representative is not available to release the 
horse.
    (e) The owner, exhibitor, trainer, or other person having custody 
of or responsibility for any horse detained by APHIS for further 
inspection, testing, or the taking of evidence shall be allowed to 
feed, water, and provide other normal custodial and maintenance care, 
such as walking, grooming, etc., for such detained horse: Provided, 
That:
    (1) Such feeding, watering, and other normal custodial and 
maintenance care of the detained horse is rendered under the direct 
supervision of an APHIS representative.
    (2) Any non-emergency veterinary care of the detained horse 
requiring the use, application, or injection of any drugs or other 
medication for therapeutic or other purposes is rendered by a Doctor of 
Veterinary Medicine in the presence of an APHIS representative and, the 
identity and dosage of the drug or other medication used, applied, or 
injected and its purpose is furnished in writing to the APHIS 
representative prior to such use, application, or injection by the 
Doctor of Veterinary Medicine attending a horse. The use, application, 
or injection of such drug or other medication must be approved by the 
APHIS representative.
    (f) It shall be the policy of an APHIS representative or HPI 
appointed by management to inform the owner, trainer, exhibitor, or 
other person having immediate custody of or responsibility for any 
horse allegedly found to be in violation of the Act or the regulations 
of such alleged violation or violations before the horse is released as 
determined by an APHIS representative.
    (g) The owner, trainer, exhibitor, or other person having immediate 
custody of or responsibility for any horse or horses that an APHIS 
representative determines shall be detained for inspection, testing, or 
taking of evidence pursuant to paragraph (c) of this section shall be 
informed after such determination is made and shall allow said horse to 
be immediately put under the supervisory custody of APHIS or secured 
under official USDA seal as provided in paragraph (d) of this section 
until the completion of such inspection, testing, or gathering of 
evidence, or until the 24-hour detention period expires.
    (h) The owner, trainer, exhibitor, or other person having custody 
of or responsibility for any horse allegedly found to be in violation 
of the Act or regulations, and who has been informed of such alleged 
violation by an APHIS representative or HPI appointed by management as 
stated in paragraph (f) of this section, may request re-inspection and 
testing of said horse within a 24-hour period: Provided, That:
    (1) Such request is made to an APHIS representative immediately 
after the horse has been inspected by an APHIS representative or HPI 
appointed by management and before such horse has been removed from the 
inspection facilities;
    (2) An APHIS representative determines that sufficient cause for 
re-inspection and testing exists; and
    (3) The horse is maintained under APHIS supervisory custody as 
prescribed in paragraph (d) of this section until such re-inspection 
and testing has been completed.
    (i) The owner, exhibitor, trainer, or other person having custody 
of, or responsibility for, any horse being inspected shall render such 
assistance, as the APHIS representative or HPI appointed by management 
may request, for the purposes of such inspection.


Sec.  11.9  Access to premises and records.

    (a) Management. (1) The management of any horse show, horse 
exhibition, or horse sale or auction shall, without fee, charge, 
assessment, or other compensation, provide APHIS representatives and 
HPIs appointed by management with unlimited access to the grandstands, 
sale ring, barns, stables, grounds, offices, and all other areas of any 
horse show, horse exhibition, or horse sale or auction, including any 
adjacent areas under their direction, control, or supervision for the 
purpose of inspecting any horses, or any records required to be kept by 
regulation or otherwise maintained.
    (2) The management of any horse show, horse exhibition, or horse 
sale or auction shall, without fee, charge, assessment, or other 
compensation, provide APHIS representatives and HPIs appointed by 
management with an adequate, safe, and accessible area for the visual 
inspection and observation of horses.
    (b) Exhibitors. (1) Each horse owner, trainer, exhibitor, or other 
person having custody of or responsibility for any horse at any horse 
show, horse exhibition, or horse sale or auction shall, without fee, 
charge, assessment, or other compensation, admit any APHIS 
representatives and HPIs appointed by management to all areas of barns, 
compounds, horse vans, horse trailers, stables, stalls, paddocks, or 
other show, exhibition, or sale or auction grounds or related areas at 
any horse show, horse exhibition, or horse sale or auction, for the 
purpose of

[[Page 56959]]

inspecting any such horse, at any and all times.
    (2) Each owner, trainer, exhibitor, or other person having custody 
of or responsibility for, any horse at any horse show, horse 
exhibition, or horse sale or auction shall promptly present his or her 
horse for inspection upon notification, orally or in writing, by any 
APHIS representatives or HPIs appointed by the management that said 
horse has been selected for inspection for the purpose of determining 
whether such horse is in compliance with the Act and regulations.


Sec.  11.10  Inspection space and facility requirements.

    (a) The management of every horse show, horse exhibition, horse 
sale, or horse auction shall provide, without fee, charge, assessment, 
or other compensation, sufficient space and facilities for APHIS 
representatives and HPIs appointed by management to carry out their 
duties under the Act and regulations when requested to do so by APHIS 
representatives or HPIs appointed by management, whether or not 
management has received prior notification or otherwise knows that such 
show, exhibition, sale, or auction may be inspected by APHIS. With 
respect to such space and facilities, it shall be the responsibility of 
management to provide at least the following:
    (1) Sufficient, well-lit space in a convenient location to the 
horse show, horse exhibition, horse sale, or horse auction arena, 
acceptable to APHIS representatives and HPIs appointed by management, 
in which horses may be inspected.
    (2) Protection from the elements of nature, such as rain, snow, 
sleet, hail, windstorm, etc.
    (3) A means to control crowds or onlookers in order that APHIS 
representatives and HPIs appointed by management may carry out their 
duties safely and without interference.
    (4) An accessible, reliable, and convenient 110-volt electrical 
power source available at the show, exhibition, sale, or auction site.
    (5) Appropriate areas adjacent to the inspection area for 
designated horses to wait before and after inspection, and an area to 
be used for detention of horses.
    (b) Other than the persons noted below, only a management 
representative, HPIs appointed by management, and APHIS representatives 
are allowed in the warm-up and inspection areas. Each horse in the 
inspection area may only be accompanied by the person having immediate 
custody of or responsibility for the horse. Inspected horses shall be 
held in a designated area under the observation by a management 
representative and shall not be permitted to leave the designated area 
before showing. Each horse in the designated warm-up area may be 
accompanied by no more than three individuals, including the person 
having immediate custody of or responsibility for the horse, the 
trainer, and the rider. No other persons are allowed in the warm-up or 
inspection areas without prior approval from an APHIS representative or 
HPI appointed by management.


Sec.  11.11-11.12  [Reserved]


Sec.  11.13  Responsibilities and liabilities of management.

    (a) Horse shows, horse exhibitions, horse sales, and horse auctions 
at which the management does not utilize an APHIS representative or 
HPI. The management of any horse show, exhibition, sale or auction 
which does not utilize an APHIS representative or appoint an HPI shall 
be responsible for identifying all horses that are sore or otherwise in 
violation of the Act or regulations, and shall disqualify or prohibit 
any horses which are sore or otherwise in violation of the Act or 
regulations from participating or competing in any horse show, horse 
exhibition, horse sale, or horse auction. Horses entered for sale or 
auction at a horse sale or horse auction must be inspected and, as 
appropriate, identified as sore or otherwise in violation of the Act or 
regulations prior to the sale or auction and, as required by the Act, 
prohibited from entering the sale or auction ring. Sore horses or 
horses otherwise in violation of the Act or regulations that have been 
entered in a horse show or horse exhibition for the purpose of show or 
exhibition must be identified and disqualified prior to the show or 
exhibition. Any horses found to be sore or otherwise in violation of 
the Act or regulations during actual participation in the show or 
exhibition, must be removed from further participation immediately 
(e.g., prior to the horse placing in the class or the completion of the 
exhibition). All horses that placed first in each class or event at any 
horse show or horse exhibition shall be inspected after being shown or 
exhibited to determine if such horses are sore or otherwise in 
violation of the Act or regulations.
    (b) Horse shows, horse exhibitions, horse sales, and horse auctions 
at which the management utilizes an APHIS representative or HPI 
appointed by management. (1) The management of any horse show, horse 
exhibition, horse sale, or horse auction that utilizes an APHIS 
representative or HPI appointed by management shall not take any action 
which will interfere with or influence the APHIS representative or HPI 
appointed by management in carrying out their duties.
    (2) The management of any horse show, exhibition, sale, or auction 
that utilizes an HPI to inspect horses shall appoint at least 2 HPIs 
when more than 100 horses are entered.
    (3) The management of any horse show, horse exhibition, horse sale, 
or horse auction that utilizes APHIS representatives or HPIs to inspect 
horses shall have at least one farrier physically present if more than 
100 horses are entered in the event. If 100 or fewer horses are entered 
in the horse show, horse exhibition, horse sale, or horse auction, the 
management shall, at minimum, have a farrier on call within the local 
area to be present, if requested by an APHIS representative or HPI 
appointed by management.
    (4) After an APHIS representative or HPI appointed by management 
has completed inspection, management must prevent tampering with any 
part of a horse's limbs or hooves in such a way that could cause a 
horse to be sore.
    (5) If management is dissatisfied with the performance of a 
particular HPI, management should promptly notify, in writing, the 
Administrator as to why management believes the performance of the HPI 
was inadequate or otherwise unsatisfactory.
    (6) Management that utilizes an APHIS representative or HPI shall 
immediately disqualify or prohibit from showing, exhibition, sale, 
offering for sale, or auction of any horse identified by the APHIS 
representative or HPI to be sore or otherwise in violation of the Act 
or regulations and any horse otherwise known by management to be sore 
or otherwise in violation of the Act or regulations. Should management 
fail to disqualify or prohibit from being shown, exhibited, sold or 
auctioned any such horse, the management is responsible for any 
liabilities arising from the showing, exhibition, sale, or auction of 
said horses.
    (c) Other responsibilities of management at horse shows, horse 
exhibitions, horse sales, and horse auctions. (1) Ensure that no 
devices or substances prohibited under Sec.  11.6 are present in the 
warm-up area.
    (2) Review the orders of the Secretary disqualifying persons from 
showing or exhibiting any horse, or judging or managing any horse show, 
exhibition, sale, or auction and disallow the participation of any such 
person in any

[[Page 56960]]

horse show, exhibition, sale, or auction, for the duration of the 
period of disqualification.
    (3) Verify the identity of all horses entered in the horse show, 
exhibition, sale, or auction. Acceptable methods of identification are 
as follows:
    (i) A description sufficient to identify the horse, including, but 
not limited to, name, age, breed, color, gender, distinctive markings, 
and unique and permanent forms of identification when present (e.g., 
brands, tattoos, cowlicks, or blemishes); or
    (ii) Electronic identification that complies with ISO standards; or
    (iii) An equine passport issued by a State government and accepted 
in the government of the State in which the horse show, horse 
exhibition, or horse sale or auction will occur.


Sec.  11.14  Records required and disposition thereof.

    (a) The management of any horse show, exhibition, sale, or auction 
that contains Tennessee Walking Horses or racking horses shall maintain 
for a minimum of 90 days following the closing date of a horse show, 
horse exhibition, horse sale, or horse auction all records containing:
    (1) The dates and place of the horse show, horse exhibition, horse 
sale, or horse auction.
    (2) The name and address (including street address or post office 
box number, and ZIP Code) of the sponsoring organization.
    (3) The name and address of the horse show, horse exhibition, horse 
sale, or horse auction management.
    (4) The name and address (including street address or post office 
box number, and ZIP Code) of each show judge.
    (5) A copy of each class or sale sheet containing the names of 
horses, the registration number of the horse (if applicable), the names 
and addresses (including street address or post office box number, and 
ZIP Code) of the horse owner, the exhibition number and class number 
unique to each horse, or sale number assigned to each horse, the show 
class or sale lot number, and the name and address (including street 
address or post office box number, and ZIP Code) of the person paying 
the entry fee and entering the horse in a horse show, horse exhibition, 
horse sale, or horse auction.
    (6) A copy of the official horse show, horse exhibition, horse 
sale, or horse auction program, if any such program has been prepared.
    (7) A copy of the official judge's or scoring card(s) for each 
horse show class containing Tennessee Walking Horses and racking horses 
to include the place each horse finished in the class.
    (8) The name and any applicable registration name and number of 
each horse, as well as the names and addresses (including street 
address or post office box number, and ZIP Code) of the owner, the 
trainer, the custodian, the exhibitor and the location (including 
street address and ZIP Code) of the home barn or other facility where 
the horse is stabled.
    (9) The name, exhibition number and class number, or assigned sale 
number, and the registration name and number (if applicable) for each 
horse disqualified or prohibited by management from being shown, 
exhibited, sold or auctioned, and the reasons for such action.
    (10) Name and address (including street address or post office box 
number, and ZIP Code) of the person designated by the management to 
maintain the records required by this section.
    (11) The name and address of each HPI appointed by management to 
conduct inspections at the event, if an HPI was appointed.
    (b) The management of any horse show, horse exhibition, horse sale, 
or horse auction that allows any horse to be shown, exhibited or sold 
with devices, pads, substances, applications, or other items restricted 
under Sec.  11.6 for therapeutic treatment must maintain the following 
information for each horse receiving the therapeutic treatment for a 
period of at least 90 days following the closing date of a show, 
exhibition, sale, or auction:
    (1) The name, exhibition number and class number, or assigned sale 
number, and the registration name and number (if applicable) for each 
horse receiving therapeutic treatment.
    (2) The name, address (including street address and ZIP Code), and 
phone number of the licensed veterinarian providing the therapeutic 
treatment.
    (3) The state and license number of the licensed veterinarian 
providing the therapeutic treatment.
    (4) The name and address (including street address and ZIP Code) 
and phone number of the licensed veterinarian's business.
    (5) A description of the disease, injury, or disorder for which the 
treatment is given, to include at minimum:
    (i) Start date of treatment.
    (ii) Prescription or specific design and prescription (for example, 
as to the height, weight, and material of a therapeutic pad) of the 
treatment plan.
    (iii) Expected length of treatment period and an estimation of when 
treatment will be discontinued.


Sec.  11.15  Inspection of records.

    The management of any horse show, horse exhibition, horse sale, or 
horse auction shall permit any APHIS representative or HPI appointed by 
management, upon request, to examine and make copies of any and all 
records pertaining to any horse that are required in the regulations or 
otherwise maintained, during business hours, or such other times as may 
be mutually agreed upon. A room, table, or other facilities necessary 
for proper examination and copying of such records shall be made 
available to the APHIS representative or HPI appointed by management.


Sec.  11.16  Reporting by management.

    (a) At least 30 days before any horse show, horse exhibition, horse 
sale, or horse auction is scheduled to begin, management must notify 
the Administrator of such event by mail, fax, or electronic means such 
as email. Such notification must include:
    (1) The name and address (including street address and ZIP Code) of 
the horse show, exhibition, sale, or auction.
    (2) The name, address, phone number (and email address, if 
available) of the event manager.
    (3) The date(s) of the horse show, horse exhibition, horse sale, or 
horse auction.
    (4) A copy of the official horse show, exhibition, sale, or auction 
program, if any such program has been prepared.
    (5) Anticipated or known number of entries.
    (6) Whether management requests an APHIS representative to perform 
inspections at the horse show, horse exhibition, horse sale, or horse 
auction; or, if not, whether management has chosen and appointed an HPI 
to inspect horses, or will have no inspector. If neither an APHIS 
representative nor an HPI is available on the date of the event, event 
management may request a variance. Variances must be submitted by mail, 
fax, or electronic means such as email to the Deputy Administrator of 
Animal Care at least 15 days before the event and state the reason for 
requesting the variance.
    (7) Whether management will allow any horse to be shown, exhibited 
or sold with prohibitions under section Sec.  11.6 for therapeutic 
treatment.
    (b) At least 15 days before any horse show, horse exhibition, horse 
sale, or horse auction is scheduled to begin, the management of any 
such horse show, horse exhibition, horse sale, or horse auction must 
notify the Administrator of any changes to the information required 
under Sec.  11.16(a) by mail, fax, or electronic means such as email.

[[Page 56961]]

    (c) Within 5 days following the conclusion of any horse show, horse 
exhibition, horse sale, or horse auction that contains Tennessee 
Walking Horses or racking horses, the management of such show, 
exhibition, sale or auction shall submit to the Administrator the 
information required to be maintained by Sec.  11.14 by mail, fax, or 
electronic means such as email. Event information already submitted to 
APHIS under paragraph (a) of this section does not need to be sent 
again.
    (d) Within 5 days following the conclusion of any horse show, horse 
exhibition, horse sale, or horse auction which does not include 
Tennessee Walking Horses or racking horses, the management of such 
show, exhibition, sale or auction shall submit to the Administrator the 
following information: Any case where a horse was prohibited by 
management from being shown, exhibited, sold or auctioned because it 
was found to be sore or otherwise in violation of the Act or 
regulations. Information will include at a minimum the name, exhibition 
number and class number, or assigned sale number, and the registration 
name and number (if applicable) for each horse disqualified or 
prohibited by management from being shown, exhibited, sold or 
auctioned, and the reason(s) for such action.


Sec.  11.17  Requirements concerning persons involved in transportation 
of certain horses.

    Each person who ships, transports, or otherwise moves, or delivers 
or receives for movement, any horse with reason to believe such horse 
may be shown, exhibited, sold or auctioned at any horse show, 
exhibition, sale, or auction, shall allow and assist in the inspection 
of such horse at any such horse show, horse exhibition, horse sale, or 
horse auction to determine compliance with the Act and regulations and 
shall furnish to any APHIS representative or HPI appointed by 
management upon their request the following information:
    (a) Name and address (including street address or post office box 
number, and ZIP Code) of the horse owner and of the shipper, if 
different from the owner or trainer;
    (b) Name and address (including street address or post office box 
number, and ZIP Code) of the horse trainer;
    (c) Name and address (including street address or post office box 
number, and ZIP Code) of the carrier transporting the horse, and of the 
driver of the means of conveyance used;
    (d) Origin of the shipment and date thereof; and
    (e) Destination of shipment.


Sec.  11.18  Utilization of inspectors.

    (a) The management of any horse show, horse exhibition, horse sale, 
or horse auction may elect to utilize an APHIS representative or HPI to 
detect and diagnose horses which are sore or to otherwise inspect 
horses for compliance with the Act or regulations.
    (b) If management elects to utilize an HPI to detect and diagnose 
horses which are sore or to otherwise inspect horses for compliance 
with the Act or regulations, the HPI must currently be authorized by 
APHIS pursuant to Sec.  11.19 to perform this function.
    (c) The management of any horse show, horse exhibition, horse sale, 
or horse auction shall not utilize any person to detect and diagnose 
horses which are sore or to otherwise inspect horses for the purpose of 
determining compliance with the Act and regulations, if that person has 
not been authorized by APHIS or if that person has been disqualified by 
the Secretary, after notice and opportunity for a hearing, in 
accordance with section 4 (15 U.S.C. 1823) of the Act, to make such 
detection, diagnosis, or inspection.
    (d) After [effective date of the final rule], only APHIS 
representatives and HPIs as defined in Sec.  11.1 shall be utilized by 
management to detect and diagnose horses which are sore or otherwise 
inspect horses for compliance with the Act or regulations. Any other 
persons seeking to continue inspecting or to become inspectors after 
[EFFECTIVE DATE OF FINAL RULE] must apply to APHIS and meet eligibility 
qualifications for authorization included in Sec.  11.19.


Sec.  11.19  Authorization and training of Horse Protection Inspectors.

    APHIS will authorize HPIs after the successful completion of 
training by APHIS. The management of any horse show, exhibition, sale, 
or auction may appoint HPIs holding a current authorization to detect 
and diagnose horses that are sore or to otherwise inspect horses and 
any records pertaining to such horses for the purposes of determining 
compliance with the Act and regulations.
    (a) Authorization process. All persons wishing to become HPIs must 
submit an application to APHIS. Guidance regarding submitting 
applications is found on the APHIS Horse Protection website. Applicants 
will be required to show that they meet the Tier 1 qualifications in 
paragraph (a)(1) of this section in order for the application to be 
evaluated. If the applicant meets the qualifications in paragraph 
(a)(1) of the section, the applicant will be further evaluated based on 
the Tier 2 qualifications in paragraph (a)(2) of this section. In order 
for APHIS to consider the applicant as a candidate to be an HPI, all 
qualifications must be met.
    (1) Tier 1 qualifications. The applicant must be a licensed 
veterinarian, except that veterinary technicians and persons employed 
by State and local government agencies to enforce laws or regulations 
pertaining to animal welfare may also be authorized if APHIS determines 
that there is an insufficient pool of veterinarians among current HPIs 
and applicants to be HPIs.
    (2) Tier 2 qualifications. (i) The applicant must demonstrate 
sufficient knowledge and experience of equine husbandry and science and 
applicable principles of equine science, welfare, care, and health for 
APHIS to determine that the applicant can consistently identify equine 
soring and soring practices.
    (ii) The applicant must not have been found to have violated any 
provision of the Act or the regulations in this part occurring after 
July 13, 1976, or have been assessed any civil penalty, or have been 
the subject of a disqualification order in any proceeding involving an 
alleged violation of the Act or regulations occurring after July 13, 
1976.
    (iii) The applicant, as well as the applicant's immediate family 
and any person from whom the applicant receives a financial benefit, 
must not participate in the showing, exhibition, sale, or auction of 
horses or act as a judge or farrier, or be an agent of management.
    (iv) The applicant must not have been disqualified by the Secretary 
from performing diagnosis, detection, and inspection under the Act.
    (v) The applicant must not have acted in a manner that calls into 
question the applicant's honesty, professional integrity, reputation, 
practices, and reliability relative to possible authorization as an 
HPI. APHIS will base this on a review of:
    (A) Criminal conviction records, if any, indicating that the 
applicant may lack the honesty, integrity, and reliability to 
appropriately and effectively perform HPI duties.
    (B) Official records of the person's actions while participating in 
Federal, State, or local veterinary programs when those actions reflect 
on the honesty, reputation, integrity, and reliability of the 
applicant.
    (C) Judicial determinations in any type of litigation adversely 
reflecting on the honesty, reputation, integrity, and reliability of 
the applicant.
    (D) Any other evidence reflecting on the honesty, reputation, 
integrity, and reliability of the applicant.

[[Page 56962]]

    (b) Training. All applicants selected as candidates will complete a 
formal training program administered by APHIS prior to authorization. 
Continual training as APHIS determines to be necessary is a condition 
of maintaining authorization to inspect horses.
    (c) Listing. APHIS will maintain a list of all HPIs on the APHIS 
Horse Protection website. The list is also available by contacting 
APHIS by email or U.S. mail.\1\
---------------------------------------------------------------------------

    \1\ Send email to [email protected], or U.S. mail to 
USDA/APHIS/AC, 2150 Centre Ave. Building B, Mailstop 3W11, Fort 
Collins, CO 80526-8117.
---------------------------------------------------------------------------

    (d) Denial of an HPI application and disqualification of HPIs--(1) 
Denial. APHIS may deny an application for authorization of an HPI for 
any of the reasons outlined in paragraph (a) of this section. In such 
instances, the applicant shall be provided written notification of the 
grounds for the denial. The applicant may appeal the decision, in 
writing, within 30 days after receiving the written denial notice. The 
appeal must state all of the facts and reasons that the person wants 
the Administrator to consider in deciding the appeal. As soon as 
practicable, the Administrator will grant or deny the appeal, in 
writing, stating the reasons for the decision.
    (2) Disqualification. APHIS may permanently disqualify any HPI who 
fails to inspect horses in accordance with the procedures prescribed by 
APHIS or otherwise fails to perform duties necessary for APHIS to 
enforce the Act and regulations, after notice and opportunity for a 
hearing. Requests for hearings and the hearings themselves shall be in 
accordance with the Uniform Rules of Practice for the Department of 
Agriculture in subpart H of part 1, subtitle A, of 7 CFR.

    Done in Washington, DC, this 15th day of August 2023.
Jennifer Moffitt,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2023-17814 Filed 8-17-23; 8:45 am]
BILLING CODE 3410-34-P