FROM: the Animal and Plant Health Inspection Service (APHIS) and the United States Department of Agriculture (USDA)
ACTION: Proposed rule.
SUMMARY: We propose to amend the horse protection regulations to provide that the Animal and Plant Health Inspection Service (APHIS) will screen, train, and authorize qualified persons to conduct inspections at horse shows, horse exhibitions, horse sales, and horse auctions to ensure compliance with the Horse Protection Act (the Act). The proposed actions are intended to strengthen regulatory requirements to protect horses from the practice of soring and eliminate unfair competition as the Act requires.
DATES: We will consider all comments that we receive on or before October 20, 2023.
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.
Responding to Congress’ 1976 amendment to the Act, APHIS revised the regulations (44 FR 1558–1566, January 5, 1979) to include qualifications for “Designated Qualified Persons,” or DQPs, to serve as third-party inspectors employed and compensated by the industry, as well as provisions for certifying industry-run programs to train and license them. These programs are currently administered by Horse Industry Organizations, or HIOs.
HIOs currently fill several roles, both unregulated and regulated, for horse shows, exhibitions, sales, and auctions. For example, event management may retain an HIO to assist with activities not regulated under the Act, such as registering participants and coordinating event logistics, supplying show judges, and promoting events. Regulated HIO activities, in addition to training and licensing DQPs, include assessing and enforcing minimum penalties for certain violations of the regulations, conducting hearings for appeals of violations, and reporting disciplinary actions against exhibitors, event management, and DQPs to APHIS. Under the current regulatory regime, an HIO seeking certification to train and license DQPs is required to submit to APHIS a formal request in writing for certification of its DQP program and a detailed outline of the program, in accordance with paragraph (b) of § 11.7 of the regulations.[4]
Under the current Horse Protection program, DQPs are the primary party responsible for inspecting and diagnosing soreness in horses. A DQP is a qualified person who, under the provisions of 15 U.S.C. 1823(c) cited above, may be appointed by management of a horse show or sale to detect horses that are sored, and to otherwise conduct inspections for the purpose of enforcing the Act. DQPs may be reimbursed for services directly by event management or by an HIO which has contracted with them to provide inspections for events. DQPs must have equine experience and meet professional qualifications as set forth in § 11.7(a).
DQP candidates must successfully complete a formal training program developed and delivered by the HIO before they can be licensed, except that veterinarians already accredited by USDA may be licensed as DQPs without having to participate in formal training. Such veterinarians must also be a member of the American Association of Equine Practitioners, or large animal practitioners with substantial equine experience, or knowledgeable of equine lameness as related to soring and soring practices. Section 11.7(a)(1)(iii) states that veterinarians having such knowledge might include those with a small animal practice who own, train, judge, or show horses, or be Doctors of Veterinary Medicine who teach equine related subjects in an accredited college or school of veterinary medicine.
Alternatively, DQPs may be farriers, horse trainers, and other knowledgeable individuals whose past experience and training would qualify them for positions as HIO stewards or judges (or their equivalent), provided that they are trained and licensed by an HIO or association whose DQP program has been certified by APHIS. Of the 59 persons licensed as DQPs in fiscal year 2022, only one is a veterinarian.
APHIS Veterinary Medical Officers (VMOs) may attend HPA-covered events unannounced to oversee and conduct inspections and to otherwise determine compliance with the Act. To ensure that horses are disqualified when soreness is detected or when other violations are found, APHIS also reviews reports by event management, HIOs, and DQPs, and conducts audits of records maintained by certified DQP programs.
APHIS has several options for resolving a case in which the evidence substantiates that an alleged violation has occurred. These include issuing official warnings to those involved in the alleged violation, offering to resolve the case through a stipulated penalty, and referring the case to the USDA Office of the General Counsel for formal administrative action before the USDA Office of Administrative Law Judges or referral to the U.S. Department of Justice.
Summary of Current Regulations
The current structure of the Horse Protection regulations in 9 CFR parts 11 and 12 is summarized below.
Section 11.1, “Definitions,” lists the definitions for terms used throughout part 11.
Section 11.2, “Prohibitions concerning exhibitors,” lists general and specific prohibitions for any device, method, practice, or substance used on any horse at any horse show, exhibition, or horse sale or auction if such use causes or can reasonably be expected to cause such horse to be sore.
In § 11.2(a), the general prohibitions state that “no chain, boot, roller, collar, action device, nor any other device, method, practice, or substance shall be used with respect to any horse at any horse show, horse exhibition, or horse sale or auction if such use causes or can reasonably be expected to cause such horse to be sore.” Prohibitions regarding devices, equipment, or practices on any horse at any horse show, exhibition, or horse sale or auction are listed in paragraph (b) of § 11.2. (We discuss the specific prohibitions under “Prohibitions Concerning Exhibitors” below.)
Paragraph (c) prohibits all substances on the extremities above the hoof of any Tennessee Walking Horse or racking horse while being shown, exhibited, or offered for sale at any horse show, exhibition, or horse sale or auction, except lubricants such as glycerin, petrolatum, and mineral oil, or mixtures. Lubricants can only be applied after the horse has been inspected by management or by a DQP, and lubricants that will be applied must be made available to APHIS personnel for inspection and sampling as deemed necessary.
Paragraph (d) provides specific requirements for rest periods during horse show and horse exhibition workouts or performances for 2-year-old Tennessee Walking Horses and racking horses, and working exhibitions for 2-year-old Tennessee Walking Horses and racking horses at sales or auctions.
In paragraph (e) of § 11.2, failure to provide information or providing any false or misleading information required by the Act or regulations or requested by Department representatives, by any person that owns, trains, shows, exhibits, or sells or has custody of, or direction or control over any horse shown, exhibited, sold, or auctioned or entered for the purpose of being shown, exhibited, sold, or auctioned at any horse show, exhibition, or horse sale or auction, is prohibited.
Under § 11.3, “Scar rule,” [5] horses that do not meet the scar rule criteria are considered to be sore and are subject to all prohibitions of the Act. Paragraph (a) of § 11.3 states the “anterior and anterior-lateral surfaces of the fore pasterns (extensor surface)” are required to “be free of bilateral granulomas,[6] other bilateral pathological evidence of inflammation, and, other bilateral evidence of abuse indicative of soring including, but not limited to, excessive loss of hair.”
Paragraph (b) of § 11.3 states the “posterior surfaces of the pasterns (flexor surface), including the sulcus or “pocket” may show bilateral areas of uniformly thickened epithelial tissue if such areas are free of proliferating granuloma tissue, irritation, moisture, edema, or other evidence of inflammation.”
Section 11.4, “Inspection and detention of horses,” includes requirements regarding inspection of horses by APHIS representatives, as well as detention of horses for inspection if an APHIS representative has probable cause to believe that a horse is sore. This section also includes provisions for maintaining the well-being of a horse in detention and for informing the owner, trainer, exhibitor, or other person having immediate custody of or responsibility for any horse allegedly found to be in violation of the Act or the regulations of such alleged violation before the horse is released from detention. Provisions for requesting reexamination and testing of detained horses are also included in this section.
Under § 11.5, “Access to premises and records,” paragraph (a) provides that the management of any horse show, exhibition, or horse sale or auction “shall, without fee, charge, assessment, or other compensation, provide APHIS representatives with unlimited access to the grandstands, sale ring, barns, stables, grounds, offices, and all other areas of any horse show, horse exhibition, or horse sale or auction, including any adjacent areas under their direction, control, or supervision for the purpose of inspecting any horses, or any records required to be kept by regulation or otherwise maintained.” Management must also provide an adequate, safe, and accessible area for the visual inspection and observation of horses while such horses are competitively or otherwise performing at any horse show or horse exhibition, or while such horses are being sold or auctioned or offered for sale or auction at any horse sale or horse auction.
Paragraph (b) of § 11.5 requires that “[e]ach horse owner, exhibitor, or other person having custody of or responsibility for any horse at any horse show, horse exhibition, or horse sale or auction shall, without fee, charge, assessment, or other compensation, admit any APHIS representative or Designated Qualified Person appointed by management, to all areas of barns, compounds, horse vans, horse trailers, stables, stalls, paddocks, or other show, exhibition, or sale or auction grounds or related areas at any horse show, horse exhibition, or horse sale or auction, for the purpose of inspecting any such horse at any and all reasonable times.” Such persons must also promptly present his or her horse for inspection upon notification by any APHIS representative or DQP appointed by management for the purpose of determining whether such horse is in compliance with the Act and regulations.
Section 11.6, “Inspection space and facility requirements,” requires the management of every horse show, exhibition, or horse sale or auction containing Tennessee Walking Horses or racking horses to provide, without fee, sufficient space and facilities for APHIS representatives to carry out their duties under the Act and regulations, whether or not management has received prior notification by APHIS. The management of every horse show, exhibition, horse sale or auction which does not contain Tennessee Walking Horses or racking horses must provide, without fee, sufficient space and facilities when requested to do so by APHIS representatives. Space and facility requirements include sufficient space for inspecting horses, protection from the elements, a means to control crowds and onlookers, an accessible, reliable, and convenient 110-volt electrical power source, if electrical service is available at the site and is requested by the APHIS representative, and appropriate inspection waiting and detention areas.
Paragraph (a) of § 11.7, “Certification and licensing of designated qualified persons (DQP’s)” currently lists basic professional qualifications required of DQP applicants and paragraph (b) lists certification requirements for DQP programs certified by APHIS and initiated and maintained by HIOs or associations.[7] As part of maintaining a DQP program that APHIS has certified, HIOs are responsible for delivering the training curriculum as well as ensuring that criteria for selecting and licensing DQPs are met. HIOs must also submit records to APHIS containing details of horse shows, exhibitions, sales, and auctions at which DQPs appointed by them inspect horses.
Paragraph (c) contains DQP licensing requirements in HIOs or associations receiving Department certification for the training and licensing of DQPs, and paragraph (d) of § 11.7 lists recordkeeping and other requirements to be met by HIOs or associations and DQPs.
Paragraph (e) of § 11.7 prohibits the management of any horse show, exhibition, horse sale, or horse auction from appointing any person to detect and diagnose horses which are sore or to otherwise inspect horses for the purpose of enforcing the Act if such person does not hold a valid DQP license, if the license is canceled, or if the person has been disqualified by the Secretary from performing diagnosis, detection, and inspection under the Act, after notice and opportunity for a hearing.
Paragraph (f) contains provisions for canceling a DQP license. Concluding this section, paragraph (g) provides the process for revoking the DQP program certification of an HIO or association.
Section 11.20 of the current regulations lists the responsibilities and liabilities of the management of any horse show, exhibition, or horse sale or auction which does not appoint a DQP to inspect horses, noting that in such cases event management is responsible and legally liable for identifying all horses that are sore or otherwise in violation of the Act or regulations and must disqualify or disallow any such horses from participating or competing in any horse show, exhibition, horse sale, or horse auction. If management does appoint a DQP to inspect horses, the section provides that management must not take any action which would interfere with or influence a DQP in carrying out his or her duties or making decisions concerning whether or not any horse is sore or otherwise in violation of the Act or regulations.
Section 11.20 also includes responsibilities for the management of any horse show, exhibition, horse sale or auction which designates and appoints one or more DQPs to inspect horses. Management in such cases must accord the DQP access to all records and areas of the grounds of such show, exhibition, sale, or auction and the same right to inspect horses and records as is accorded to any APHIS representative.
Section 11.21 lists inspection procedures that DQPs must follow, including requirements for walking and turning the horse in a manner that allows the DQP to determine whether the horse exhibits signs of soreness. This section also includes the procedure for proper palpation to detect soreness, as well as procedures for conducting horses through other elements of the inspection process.
Under § 11.22, “Records required and disposition thereof,” the management of any horse show, exhibition, or horse sale or auction, that contains Tennessee Walking Horses or racking horses is required to maintain for at least 90 days following the closing date of the show, exhibition, or sale or auction, all pertinent records. If specifically required by APHIS, management may be required to hold the records specified longer than 90 days.
Under paragraph (a) of § 11.23, “Inspection of records,” the management of any horse show, exhibition, or horse sale or auction must allow any APHIS representative, upon request, to examine and make copies of any and all records pertaining to any horse. Similarly, paragraph (b) requires that HIOs or associations that train, maintain, and license inspectors under a certified DQP program must permit any APHIS representative, upon request, to examine and copy any and all records relating to the DQP program which are required by any part of the regulations.
In § 11.24, “Reporting by management,” paragraph (a) states that within 5 days following the conclusion of any horse show, exhibition, or horse sale or auction, containing Tennessee Walking Horses or racking horses, management must submit to the Regional Director for the State in which the show, exhibition, sale or auction was held, information required in paragraphs (a)(1) through (a)(6) of § 11.22 for each horse excused or disqualified by management or its representatives from being shown, exhibited, sold or auctioned, and the reasons for such action.
In paragraph (b) of § 11.24, within 5 days following the conclusion of any horse show, exhibition, or horse sale or auction which does not contain Tennessee Walking Horses or racking horses, the management must inform the Regional Director for the State in which the show, exhibition, sale or auction was held, of any case where a horse was excused or disqualified by management or its representatives from being shown, exhibited, sold or auctioned because it was found to be sore.
Section 11.25, “Minimum penalties to be assessed and enforced by HIOs that license DQPs” lists suspensions and minimum penalties for violations of the Act and regulations. HIOs are required to include penalties in their rulebooks [8] for violations that equal or exceed the penalties listed in paragraph (c) of the section; minimum penalties are specified in that paragraph. HIOs are also required in this section to assess and enforce the penalty, as well as and any suspension included with the penalty. The HIO must provide a process, subject to APHIS approval, for alleged violators to appeal penalties.
Section 11.40 lists prohibitions and requirements concerning persons involved in transportation of certain horses, including providing APHIS with transportation information in order to determine compliance with the Act and regulations.
Section § 11.41 currently requires each HIO or association which sponsors or sanctions any horse show, exhibition, or sale or auction, to furnish the Department by March 1st of each year with all such HIO or association rulebooks, and disciplinary procedures for the previous year pertaining to violations of the Act or regulations, applicable to such horse show, exhibition, or sale or auction. Each HIO or association must also furnish the Department with a quarterly report of all disciplinary actions taken against the management of [9] any horse show, exhibition, sale, or auction, any exhibitor, or any licensed DQP, for violation of the Act or regulations, and the results. The Department retains the authority to initiate enforcement proceedings with respect to any violation of the Act.
Part 12 of the Horse Protection regulations reference the rules of practice for USDA as promulgated in 7 CFR part 1.
Section 12.1 addresses the scope and applicability of rules of practice. These rules of practice are applicable to adjudicatory, administrative proceedings under section 6(a) of the Act (15 U.S.C. 1825(a)) and sections 6(b) and (c) of the Act (15 U.S.C. 1825(b) and (c)).
Lastly, § 12.10, “Stipulations,” provides that the Administrator may enter into a stipulation with any person notified of an apparent violation of the Act or regulations if that person waives a hearing and agrees to pay a specified civil penalty within a designated time.
LINK TO FULL DOCUMENT: https://www.federalregister.gov/documents/2023/08/21/2023-17814/horse-protection
