[Federal Register Volume 77, Number 110 (Thursday, June 7, 2012)]
[Rules and Regulations]
[Pages 33607-33619]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13759]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 11

[Docket No. APHIS-2011-0030]
RIN 0579-AD43


Horse Protection Act; Requiring Horse Industry Organizations To 
Assess and Enforce Minimum Penalties for Violations

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the horse protection regulations to require 
horse industry organizations or associations that license Designated 
Qualified Persons to assess and enforce minimum penalties for 
violations of the Horse Protection Act (the Act). The regulations 
currently provide that such penalties will be set either by the horse 
industry organization or association or by the U.S. Department of 
Agriculture. This action will strengthen our enforcement of the Act by 
ensuring that minimum penalties are assessed and enforced consistently 
by all horse industry organizations and associations that are certified 
under the regulations by the U.S. Department of Agriculture.

DATES: Effective Date: July 9, 2012.

FOR FURTHER INFORMATION CONTACT:  Dr. Rachel Cezar, Horse Protection 
National Coordinator, Animal Care, APHIS, 4700 River Road, Unit 84, 
Riverdale, MD 20737; (301) 851-3746.

SUPPLEMENTARY INFORMATION: 

Background

    In 1970, Congress passed the Horse Protection Act (15 U.S.C. 1821-
1831), referred to below as the Act or the HPA, to eliminate the 
practice of soring by prohibiting the showing or selling of sored 
horses. The regulations in 9 CFR part 11, referred to below as the 
regulations, implement the Act.
    In the Act, Congress found and declared that the soring of horses 
is cruel and inhumane. The Act states that the term ``sore'' when used 
to describe a horse means that the horse suffers, or can reasonably 
expect to suffer, physical pain or distress, inflammation, or lameness 
when walking, trotting, or otherwise moving as a result of:
     An irritating or blistering agent applied, internally or 
externally, by a person to any limb of a horse,
     Any burn, cut, or laceration inflicted by a person on any 
limb of a horse,
     Any tack, nail, screw, or chemical agent injected by a 
person into or used by a person on any limb of a horse, or
     Any other substance or device used by a person on any limb 
of a horse or a person has engaged in a practice involving a horse.

(The Act excludes therapeutic treatment by or under the supervision of 
a licensed veterinarian from the definition of ``sore'' when used to 
described a horse.)
    The practice of soring horses is aimed at producing an exaggerated 
show gait for competition. Typically, the forelimbs of the horse are 
sored, which causes the horse to place its hindlimbs further forward 
than normal under the horse's body, resulting in its hindlimbs carrying 
more of its body weight. When the sored forelimbs come into contact 
with the ground, causing pain, the horse quickly extends its forelimbs 
and snaps them forward. This gait is known as ``the big lick.''
    Soring is primarily used in the training of Tennessee Walking 
Horses,

[[Page 33608]]

racking horses, and related breeds. Although a gait similar to ``the 
big lick'' can be obtained using selective breeding and humane training 
methods, soring achieves this accentuated gait with less effort and 
over a shorter period of time. Thus, Congress found and declared 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. Congress further found and declared that the movement, 
showing, exhibition, or sale of sore horses in intrastate commerce 
adversely affects and burdens interstate and foreign commerce.
    Section 4 of the Act (15 U.S.C. 1823) directs the Secretary of 
Agriculture to prescribe, by regulation, requirements for the 
appointment by the management of any horse show, horse exhibition, or 
horse sale or auction (referred to below as ``show management'') of 
persons qualified to detect and diagnose a horse which is sore or to 
otherwise inspect horses for the purpose of enforcing the Act. The 
intent of Congress and the purpose of this provision is to encourage 
horse industry self-regulatory activity and to allow show management to 
have the benefit of certain limits upon their liability under the Act 
if they employ a Designated Qualified Person (DQP) to detect and 
diagnose soring and to otherwise inspect horses for the purpose of 
enforcing the Act. The Secretary is further authorized under section 9 
of the Act (15 U.S.C. 1828) to issue such rules and regulations as he 
deems necessary to carry out the provisions of the Act.
    Under the regulations, DQPs are trained and licensed to inspect 
horses for evidence of soreness or other noncompliance with the Act and 
the regulations in programs sponsored by horse industry organizations 
or associations (HIOs). An HIO's DQP program must meet the requirements 
of Sec.  11.7 of the regulations, which include requirements for 
licensing, training, recordkeeping and reporting, and standards of 
conduct, among other things. The U.S. Department of Agriculture (USDA) 
certifies and monitors these programs.
    DQPs conduct inspections according to procedures set out in Sec.  
11.21 of the regulations. Paragraph (d) of Sec.  11.21 requires the 
certified DQP organization (i.e., the HIO) under which the DQP is 
licensed to assess appropriate penalties for violations, as set forth 
in the rule book of the certified program under which the DQP is 
licensed, or as set forth by the USDA. In addition to the DQP's report 
to show management, the HIO must also report all violations to show 
management.
    On May 27, 2011, we published in the Federal Register (76 FR 30864-
30868, Docket No. APHIS-2011-0030) a proposal \1\ to amend the 
regulations to require HIOs that license DQPs to assess and enforce 
minimum penalties for violations of the Act. We stated that the 
proposal was in response to an audit report \2\ issued in September 
2010 by the USDA's Office of the Inspector General (OIG) regarding the 
Animal and Plant Health Inspection Service's (APHIS) administration of 
the Horse Protection Program and the Slaughter Horse Transport Program. 
The audit found that APHIS' program for inspecting horses for soring is 
not adequate to ensure that these animals are not being abused. Due to 
this ineffective inspection system, the report stated, the Act is not 
being sufficiently enforced, and the practice of abusing show horses 
continues. One of the recommendations in the audit report was that 
APHIS develop and implement protocols to more consistently negotiate 
penalties with individuals who are found to be in violation of the Act.
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    \1\ To view the proposed rule and the comments we received, go 
to http://www.regulations.gov/#!docketDetail;D=APHIS-2011-0030.
    \2\ Available at http://www.usda.gov/oig/webdocs/33601-02-KC.pdf.
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    We stated that requiring HIOs to implement a minimum penalty 
protocol would strengthen our enforcement of the Act by ensuring that 
minimum penalties are assessed and enforced consistently by all HIOs 
that are certified under the regulations pursuant to section 4 of the 
Act.
    We solicited comments concerning our proposal for 60 days ending 
July 26, 2011. We received 28,249 comments by that date. These included 
27,349 substantively identical form letters submitted by individuals 
who commented through an animal welfare advocacy group. The comments 
were from HIOs and gaited horse organizations, other horse 
organizations, veterinary associations, horse and animal welfare 
advocacy groups, participants in the horse industry, and the general 
public.
    Many commenters supported the proposed rule and increased 
enforcement of the Act in general, stating that the horse industry had 
failed to eliminate soring. Some of these commenters noted that the 
proposed rule would only affect people who sore horses, not the entire 
Tennessee Walking Horse industry, and stated that measures such as 
those we proposed are necessary to ensure that horses are not sored.
    Other commenters who supported the proposed rule stated that the 
HIOs that have not adopted the minimum penalty protocol have created an 
economic disadvantage for the HIOs who have done so. One commenter 
stated that requiring less stringent penalties has become a way for 
HIOs to attract business. These commenters stated that the proposed 
rule would ensure that soring is properly deterred and punished and 
that requiring uniform minimum penalties would benefit owners and 
trainers who reject soring and exhibit sound horses, consistent with 
the intention of the Act.
    Most of the commenters who supported the proposed rule also 
recommended that we require penalties more stringent than those we had 
proposed; these comments are discussed below under the heading 
``Requests for Increases in Proposed Penalties and Addition of 
Penalties for Other Violations.''
    The remaining comments are discussed below by topic.

Current HIO Enforcement of the Act

    Of the commenters who opposed the proposed rule, several stated 
that minimum mandatory penalties are not necessary because the current 
HIO system is working to prevent sore horses from being shown, 
exhibited, sold, or auctioned. The commenters stated that current DQP 
inspections under the HIOs are rigorous and effective. Some stated that 
the walking horse industry has improved its compliance dramatically in 
the past 2 to 3 years, with strong enforcement from certain HIOs. 
Commenters cited high compliance rates for horses entered at DQP-
inspected shows.
    Several commenters stated that the current penalties that HIOs 
assess and enforce are effective. Another commenter stated that there 
is no uncertainty about penalties under the current system, as each HIO 
has a published penalty structure available to all participants.
    Another commenter stated that despite any progress, much work 
remains to accomplish the goal of eliminating soring, and that the 
compliance rates cited by other commenters are meaningless for several 
reasons: (1) The HIOs themselves are reporting the compliance rates; 
(2) the overall rate includes HIOs committed to the sound, unsored 
horse along with other HIOs, artificially inflating the compliance rate 
for the latter; (3) the overall rate does not include horses that are 
brought to shows, exhibitions, sales, and auctions but not presented 
for inspection when USDA is present; and (4) the overall rate includes 
horses that got through inspection by use of drugs.

[[Page 33609]]

    We have determined that it is necessary to establish minimum 
penalties to be assessed and enforced by HIOs in this final rule. As 
discussed in the proposed rule, the OIG audit found that APHIS' program 
for inspecting horses for soring, specifically the industry self-
regulation carried out by DQPs trained by and operating under HIOs that 
are certified under the regulations, has not been adequate to ensure 
that these animals are not being abused. The OIG audit indicated that 
over 30 years of industry self-regulation through the DQP program has 
failed to eliminate the cruel and inhumane practice of soring, thus 
necessitating APHIS action to make the industry's self-regulatory 
efforts more effective.
    The compliance rates cited by some commenters are not in and of 
themselves proof of the effectiveness of HIO enforcement of the Act, 
for many of the reasons cited by the last commenter. In addition, 
focusing on compliance rates obscures the fact that substantial numbers 
of horses are still found to be in violation of the Act each year, 
meaning that HIO enforcement has not been sufficient to eliminate the 
cruel and inhumane practice of soring.
    One commenter stated that HIO penalties are appropriate and set 
based on years of experience and the severity of the violation. This 
commenter stated that DQPs do a better job of enforcement when a single 
DQP's inspection results in a smaller penalty, because the penalties 
that would be enforced would not potentially put a person out of 
business or shut down a training facility that employs several people.
    As documented in the OIG audit, DQPs issue substantially more 
violations when APHIS VMOs are present than when they are not, 
suggesting that high compliance rates achieved at shows where only HIO 
DQPs are present may not reflect a decreased prevalence of soring. As 
this differential exists under the current HIO penalty structures, we 
do not believe that HIOs with less stringent penalties than those we 
proposed are ensuring the freer issuance of violations.
    One commenter stated that the OIG audit predates the recent 
increase in HIO enforcement of the Act and that the HIOs currently 
enforce the Act effectively. Another stated that the OIG audit does not 
fairly represent the progress the industry has made in the last decade.
    The OIG audit was based on data from several years, including a 
review of show reports from the 2008 season and site visits conducted 
in 2008. As noted earlier, the conclusions of the audit indicate that 
over 30 years of industry self-regulation through the DQP program has 
failed to eliminate the cruel and inhumane practice of soring. Since 
2008, our experience in administering the Horse Protection Program does 
not indicate that there has been a significant change in the 
circumstances described in the OIG audit.
    Many commenters stated that the penalties currently assessed by 
HIOs exceed those in the Act. (Conversely, two commenters stated that 
the proposed penalties far exceed those mandated in the Act.)
    Regardless of whether the penalties imposed by HIOs exceed those in 
the Act, the information and data discussed in the proposed rule and 
directly above indicate that those penalties are not successfully 
achieving the goal of the DQP and HIO program, which is to end the 
cruel and inhumane practice of soring. Requiring all HIOs to assess and 
enforce minimum penalties for violations of the Act will ensure that 
all HIOs are operating in a consistent manner and will enhance the 
effectiveness of the Horse Protection Program.

Requiring HIOs To Assess and Enforce Minimum Penalties in the Context 
of the Act

    Several commenters stated that the Department does not have the 
authority to change or modify the penalties in the Act by establishing 
a minimum penalty protocol in the regulations.
    The Act sets out criminal and civil penalties for violations of the 
Act in section 6 (15 U.S.C. 1825). This section gives the Department 
authority to pursue criminal and civil penalties against those who 
violate the Act.
    The DQP program, in contrast, was established in the regulations 
pursuant to section 4 of the Act in order to encourage horse industry 
self-regulatory activity and to allow show management to have the 
benefit of certain limits upon its liability under the Act. In 
addition, APHIS has the authority under section 9 of the Act to issue 
regulations that impose whatever requirements on the HIOs that APHIS 
determines to be necessary to enforce the Act and the regulations.
    When the DQP program was established over 30 years ago, we granted 
a formal role in the regulations to HIOs in order to continue 
encouraging horse industry self-regulatory activity. The requirements 
for HIOs were promulgated pursuant to section 4 of the Act and thus are 
within APHIS' authority under the Act. Over the years, the role of HIOs 
has expanded to include assessing and enforcing penalties for 
violations of the Act, in accordance with Sec.  11.21(d) of the 
regulations. However, the industry self-regulatory activity, and in 
particular the penalties HIOs have assessed and enforced under the 
regulations, have not been sufficient to end the cruel and inhumane 
practice of soring.
    One issue that has made the HIO penalties less effective than they 
could have been is the discrepancies that have existed among the 
penalties assessed and enforced by HIOs for certain offenses, resulting 
in inconsistent enforcement of the Act. To ensure that the horse 
industry is effectively working to eliminate the cruel and inhumane 
practice of soring, in accordance with section 4 of the Act and with 
the original purpose of the regulations, this final rule requires HIOs 
to assess and enforce minimum penalties for violations of the Act. The 
penalties we are requiring HIOs to assess and enforce in this final 
rule do not exceed the civil penalties provided in the Act, and this 
final rule does not change the penalties provided in the Act.
    One commenter quoted paragraph (c) of section 4 of the Act, which 
states that the Secretary shall prescribe by regulation requirements 
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 or to otherwise inspect horses for the 
purposes of enforcing the Act. The commenter stated that this language 
indicates that industry inspectors may only ``detect,'' ``diagnose'' 
and ``inspect,'' and does not provide industry inspectors with the 
authority to impose any agency penalty whatsoever.
    Similarly, two other commenters stated that, because the Act 
prohibits showing or exhibiting, entering for the purpose of showing or 
exhibiting, or selling, auctioning, or offering for sale any horse that 
is sore, all that is required under the Act is that a DQP inspect for 
soring, notify management when a horse is sore, and provide the 
appropriate reports. Therefore, these commenters stated, the proposal 
to require HIOs to assess and enforce minimum penalties is an effort to 
circumvent the Act.
    Some commenters stated that the language of the Act only allows the 
Secretary to assess and enforce penalties and does not give the 
Secretary the authority to impose penalties through any other means, 
including a private organization such as an HIO. One commenter stated 
that the provisions of paragraph (b) of section 6 show that any penalty 
structure that an HIO implements is strictly voluntary, although the 
HIOs have always felt it

[[Page 33610]]

was in the best interest of the Act to have a penalty structure in 
place to deter soring. Another commenter stated that the HIOs that 
currently assess and enforce penalties do so through the power given to 
them by the exhibitors, and that the Department cannot mandate 
penalties to be enforced by a private corporation.
    Section 9 of the Act authorizes the Secretary to issue such rules 
and regulations as are deemed necessary to carry out the provisions of 
the Act. As discussed earlier, the Act itself does not prescribe the 
creation of HIOs; the Department decided to create them as DQP 
licensing authorities to further industry self-regulation towards the 
goal of eliminating the cruel and inhumane practice of soring. The 
regulations in Sec.  11.21(d) have long indicated that HIOs shall 
assess appropriate penalties for violators, as set forth in their 
rulebooks or as set forth by the Department. This final rule sets forth 
those penalties that we have determined to be appropriate and necessary 
to eliminate soring, which the HIOs have failed to do. Therefore, this 
final rule is within the authority granted to the Secretary by the Act.
    HIOs that do not wish to cooperate in the effort to eliminate 
soring by imposing the minimum penalties required in this final rule 
may withdraw from certification; if an HIO refuses to implement the 
minimum penalties, we will initiate proceedings to decertify the HIO, 
as described in Sec.  11.7(g).
    Several commenters stated that requiring HIOs to assess and enforce 
penalties would be inconsistent with the Act's requirement, in 
paragraph (b) of section 6, that no civil penalty will be assessed 
unless such person is given notice and opportunity for a hearing before 
the Secretary of Agriculture with respect to such violation. (Paragraph 
(b) also sets out a process for review by a court of appeals.) Many of 
these commenters stated that it was Congress' intent to require the due 
process described in paragraph (b) to be followed before the imposition 
of a penalty, and that the proposed rule would take away individuals' 
rights to due process. Similarly, many commenters stated that HIOs, as 
private organizations that were established to cooperate with APHIS in 
the enforcement of the Act, are not required to provide due process for 
violators.
    Some commenters focused on what they perceived to be the HIOs' 
roles as state actors (organizations acting on behalf of the Government 
and thus required to provide due process) in the context of the 
proposed rule's minimum penalty requirements. Two commenters stated 
that the law is clear that the initial stages of a state-action 
disciplinary proceeding are delegated to a private party (such as an 
HIO), the agency that delegated the authority must grant a de novo 
review of the decision, i.e., a new trial on the merits. One of these 
commenters additionally stated that the Department would likely be held 
liable for the actions of HIOs in the imposition of such penalties and 
any corresponding deprivation of rights of the individuals affected.
    One commenter expressed concern that people who show in front of 
multiple HIOs during the course of a show season would be required to 
submit to each HIO's appeal process without being able to appeal the 
decisions to the Secretary or a court of law.
    As described earlier, section 4 of the Act provides the Secretary 
with authority to establish requirements for the appointment of DQPs by 
management, as Congress envisioned that both public and private horse 
inspectors would monitor compliance with the Act. Thus, the horse 
industry in general and HIOs specifically have been playing a role in 
enforcing the HPA since its inception. Over the years, the role of HIOs 
has expanded to include assessing and enforcing penalties for 
violations of the Act. However, we maintained the authority to 
intervene if the DQPs and the HIOs that licensed the DQPs were not 
effectively working towards the goal of eliminating the cruel and 
inhumane practice of soring. This final rule responds to problems 
associated with discrepancies among HIO penalties by requiring 
consistent penalties, thus enhancing the effectiveness of the 
industry's self-regulating efforts.
    Paragraph (e) of Sec.  11.25 in this final rule requires each HIO 
to have an appeals process in its rulebook that is approved by the 
Department. We will only approve appeals processes that give notice and 
opportunity for a hearing and that ensure a fair hearing. In addition, 
we will monitor the appeals processes to ensure that they are working 
effectively. This will ensure that persons who have penalties assessed 
by an HIO will have recourse to challenge the penalty within the HIO 
structure, and thus fulfills the due process requirements of the Act. 
As currently occurs when HIOs assess and enforce penalties, persons who 
do not agree with the HIO's decision will be free to bring a suit 
against the HIO itself.
    HIOs currently provide all these functions in accordance with the 
regulations in Sec.  11.21(d). We do not expect any of these processes 
or functions to change with the promulgation of minimum required 
penalties; we are simply specifying penalties in accordance with Sec.  
11.21(d).

Inspection Procedures

    DQPs find violations of the Act by inspecting horses, and thus 
penalties will be assessed and enforced on the basis of the results of 
these inspections. As mentioned earlier, Sec.  11.21 of the regulations 
sets out inspection procedures for DQPs. Under this section, a DQP must 
walk and turn the horse being inspected and determine whether the horse 
moves in a free and easy manner and is free of any signs of soreness. 
The DQP must also digitally palpate the front limbs of the horse from 
knee to hoof, with particular emphasis on the pasterns and fetlocks, 
while observing for responses to pain in the horse. Any pain would 
indicate that the horse is sore.
    The DQP also examines horses to determine whether they are in 
compliance with the scar rule in Sec.  11.3, and particularly whether 
there is any evidence of inflammation, edema, or proliferating 
granuloma tissue. Under Sec.  11.3, the anterior and anterior-lateral 
surfaces of a horse's pasterns (extensor surface) must be free of 
bilateral granulomas, other bilateral pathological evidence of 
inflammation, and other bilateral evidence of abuse indicative of 
soring; 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. If the horse is not free of these symptoms, 
it is considered to be sore under Sec.  11.3.
    The DQP may also carry out additional inspection procedures as he 
or she deems necessary to determine whether the horse is sore.
    In order to ensure that the Act is being properly enforced, APHIS 
sometimes sends veterinary medical officers (VMOs) to conduct 
inspections of horses at horse shows, exhibitions, sales, and auctions, 
whether or not the show, exhibition, sale, or auction is affiliated 
with an HIO. VMOs follow the same inspection protocol as DQPs do and 
serve as an independent check on the effectiveness of DQP inspection. 
In addition, where available, VMOs use thermography to assess whether 
areas in a horse's forelimbs may be inflamed in a manner characteristic 
of soring, or x-ray examination to determine whether a horse's bones 
show signs of stress indicative of soring.

[[Page 33611]]

    Several commenters opposed the imposition of penalties for what 
they stated are violations based on subjective inspections, which are 
often the subject of differences of opinion among VMOs, DQPs, and other 
parties. These extend to differences of opinion regarding one horse 
participating in different classes at a horse show. Several added that 
the evidence from such inspections would be insufficient to obtain 
convictions in a court of law, which is why, the commenters stated, the 
USDA has proposed the minimum penalties to be assessed and enforced by 
HIOs.
    Numerous commenters stated that mandatory penalties should not be 
imposed until an objective scientific determination of when a horse is 
sore can be made. Several stated that such determinations are not 
possible with digital palpation, thermography, or x-ray analysis, all 
of which are subject to inconsistencies in application and 
interpretation. Several stated that palpation is conducted with the 
primary goal of inducing a response, or that it is bound to induce a 
response in horses that are generally skittish at inspection. Others 
stated that the scar rule is also applied inconsistently.
    A few commenters stated that inspections of sound horses do not 
find any violations. One commenter stated that some HIOs and their DQPs 
do not follow the standards of the USDA, thus producing inconsistent 
results in inspections. Another commenter stated that a horse that has 
been trained in order to develop the natural abilities of the horse, 
without soring, would not be borderline with respect to compliance with 
the Act and would thus not be diagnosed differently by different VMOs 
and DQPs. This commenter stated that the more common problem with 
respect to subjectivity of digital palpation is DQPs not applying 
enough pressure during palpation and thus allowing sore horses to be 
shown, exhibited, sold, or auctioned. Similarly, the commenter stated, 
the Department has provided clear guidance on the scar rule and it is 
not difficult to determine whether a horse is in or out of compliance.
    Digital palpation is a well-accepted and highly reliable method of 
determining whether a horse is sore and thus in violation of the Act. 
In addition, the other inspection methods we use, including examination 
of the horse's gait, thermography, and x-ray analysis, all have value 
and are reliable as well, and can provide additional information about 
whether a horse is sore that may not be available through digital 
palpation, thus contributing to our effective enforcement of the Act. 
We welcome suggestions from the public on other potential methods of 
determining whether horses are sore, and we continue to work with 
researchers to develop additional methods.
    Some of the differences in opinion between DQPs and VMOs that the 
commenters discussed may be due to incorrect application of the 
inspection methods. This is why we help conduct DQP training to ensure 
that all DQPs are aware of the correct procedures for performing 
inspection. Information on conducting digital palpation is also 
available in guidance we provide to HIOs. With respect to the scar rule 
specifically, we train DQPs and VMOs every year to ensure that the scar 
rule is consistently interpreted, and we make guidance on its 
interpretation available to anyone who requests it.
    The goal of digital palpation is to determine whether pressure 
applied to the forelimbs of the horse from knee to hoof causes pain. 
Such pain indicates that the horse is sore. APHIS VMOs conduct 
palpation with this goal in mind.
    A recent study \3\ indicates that the amount of pressure applied 
during digital palpation is not enough to elicit a response in a horse 
that has not been sored. Under this final rule, if a horse is skittish 
at inspection, the horse would likely be determined to be unruly under 
paragraph (d) of Sec.  11.25 and thus would be excused from the class, 
but would not be determined to be sore.
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    \3\ Haussler, K. K., T. H. Behre, and A. E. Hill. Mechanical 
nociceptive thresholds within the pastern region of Tennessee 
Walking Horses. Equine vet. J. (2008) 40 (5) 455-459.
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    Based on these considerations, we have determined that the 
inspection methods that APHIS trains DQPs to administer provide 
evidence that is sufficiently reliable to serve as the basis for 
assessing a penalty under this final rule.

Shows Not Affiliated With an HIO

    Many commenters expressed concern that requiring HIOs to assess and 
enforce minimum penalties would encourage owners and trainers to show 
their horses at shows whose management does not appoint a DQP to 
perform inspections to ensure that sore horses are not shown. As noted 
earlier, at such shows, show management assumes liability under the Act 
for any sore horses that are shown, exhibited, sold, or auctioned. 
These shows are often referred to as ``unaffiliated'' shows because the 
show is not affiliated with an HIO that provides a DQP to conduct 
inspections.
    Many of these commenters stated that increasing numbers of horses 
were being shown at unaffiliated shows, and the proposed rule would 
accelerate this trend. One commenter stated that there are currently a 
minimum of 400 unaffiliated shows each season.
    Some of these commenters stated that horses shown at unaffiliated 
shows would not pass the inspections conducted at HIO-affiliated shows. 
One commenter stated that individuals who have been suspended under the 
current HIO penalties have shown at unaffiliated shows.
    All of these commenters stated that APHIS should emphasize 
enforcement of the Act at unaffiliated shows, and most stated that 
inspections at unaffiliated shows should be emphasized in place of 
finalizing the proposed minimum penalty protocol. Many commenters 
stated that APHIS inspections at unaffiliated shows have been minimal 
or nonexistent. One commenter stated that the Department has never 
pursued a case against the management of an unaffiliated show.
    One commenter stated that the penalty protocol should be 
implemented along with an increased emphasis on enforcement at 
unaffiliated shows, to best effectuate the purpose of the Act.
    We agree with the last commenter. We plan to continue inspections 
of nonaffiliated shows; at the same time, we are promulgating the 
minimum penalty protocol in this final rule.
    Contrary to the suggestions of many commenters, we do regularly 
attend unaffiliated shows. Through October 11, 2011, we attended 12 
unaffiliated shows, out of a total of 74 shows attended to that point 
in that year. During the 2010 season, we attended 6 unaffiliated shows 
out of a total of 59 shows attended. Lists of all shows we have 
attended in the last 5 years, including unaffiliated shows, are 
available on the Horse Protection Web site.\4\ When evidence warrants, 
we investigate unaffiliated shows to determine whether prosecution 
under the Act is warranted. We are planning more of these enforcement 
activities in the future, as attending unaffiliated shows is essential 
to the effective enforcement of the Act.
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    \4\ Lists of shows attended during the 2007 through 2010 seasons 
are available under the heading ``Veterinary Medical Officer (VMO) 
Annual Show Report'' at http://www.aphis.usda.gov/animal_welfare/hp/hp_pubs_reports.shtml. The list of shows attended through 
October 11, 2011, is available at http://www.aphis.usda.gov/animal_welfare/downloads/hp/USDA%202011%20HP%20Activity.pdf.
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    It is also essential that we attend shows that are affiliated with 
HIOs in order to ensure that the DQPs at those

[[Page 33612]]

shows are effectively enforcing the Act. Over 700 shows in the 2011 
season were affiliated with an HIO. It is APHIS' responsibility to 
oversee the DQP program to ensure that the HIOs and their DQPs are 
working effectively to enforce the Act, in accordance with their self-
regulatory responsibilities. As mentioned earlier, the OIG audit found 
the current program is not sufficient to prevent soring, and the audit 
found in particular that DQPs issue substantially more violations when 
APHIS VMOs are present than when they are not. This indicates a need 
for continued oversight.

Suspensions

Parties Required To Be Suspended

    Paragraph (b) of proposed Sec.  11.25 described various conditions 
applying to suspensions under the minimum penalty protocol. For 
violations for which we proposed to require suspensions in Sec.  
11.25(c), we proposed in paragraph (b)(1) to require the suspension of 
individuals including, but not limited to, the owner, manager, trainer, 
rider, custodian, or seller, as applicable, who are responsible for 
showing the horse, exhibiting the horse, entering or allowing the entry 
of the horse in a show or exhibition, selling the horse, auctioning the 
horse, or offering the horse for sale or auction.
    Many commenters objected to suspending the owner, manager, trainer, 
rider, and custodian for the same violation. Some trainers commented 
that they exhibit several horses every weekend and could be subject to 
a suspension penalty if any one of them is found to be in violation of 
the Act or the regulations. A few commenters stated that owners should 
not be held responsible for something done to their horses, as owners 
cannot be with their animals continuously and thus cannot know 
everything done to an animal while it is being trained.
    In addition, some commenters asked us to adjust the language of 
proposed paragraph (b)(1). One commenter said that words like ``can'' 
and ``could'' need to be replaced with words like ``will'' and 
``shall.'' Another stated that we should change the proposed text to 
require the suspension of ``all individuals, including but not limited 
to * * *''
    A third commenter stated that the proposed language was at best 
vague and provides almost no guidance to HIOs about who should be 
subject to sanctions for any particular violation of the Act. This 
commenter recommended that we adopt language from the 2007-2009 HPA 
Operating Plan,\5\ which contained language specifying which 
individuals should be subject to penalties for various offenses.
---------------------------------------------------------------------------

    \5\ The Operating Plan, which is no longer in effect, was a 
document in which the Department agreed to allow HIOs to exercise 
initial enforcement authority, including assessing suspension 
penalties for certain violations, for horse shows, horse 
exhibitions, and horse sales and auctions that were affiliated with 
the HIOs.
---------------------------------------------------------------------------

    Section 5 of the Act (15 U.S.C. 1824) prohibits transporting, 
showing or exhibiting, entering for the purpose of showing or 
exhibiting, or selling, auctioning, or offering for sale any horse 
which is sore. It also prohibits an owner from allowing the showing or 
exhibiting, entering for the purpose of showing or exhibiting, or 
selling, auctioning, or offering for sale any horse which is sore. 
Thus, requiring owners to be suspended is consistent with the Act. In 
addition, as trainers commonly are responsible for showing or 
exhibiting horses under their care, it is appropriate to require that 
they be suspended if they fill those roles.
    The regulatory text we proposed in paragraph (b)(1) indicated that 
anyone who is responsible for showing a sore horse, exhibiting such a 
horse, entering or allowing the entry of such a horse in a show or 
exhibition, selling such a horse, auctioning such a horse, or offering 
such a horse for sale or auction must be suspended. We believe that 
listing the types of people who may be responsible for violations of 
the Act may have confused readers. In this final rule, we have 
rewritten paragraph (b)(1) to read as follows: ``For the violations 
listed in paragraph (c) of this section that require a suspension, any 
individuals who are responsible for showing the horse, exhibiting the 
horse, entering or allowing the entry of the horse in a show or 
exhibition, selling the horse, auctioning the horse, or offering the 
horse for sale or auction must be suspended. This may include, but may 
not be limited to, the manager, trainer, rider, custodian, or seller, 
as applicable. In addition, if the owner allowed any activity listed in 
this paragraph, the owner must be suspended as well.'' This is 
substantively equivalent to the proposed text but indicates more 
clearly that people must be suspended when they have violated the Act, 
not simply because they have a certain role with respect to a sore 
horse.
    We understand that trainers often have multiple horses showing at 
any given time. However, if a trainer shows or exhibits multiple 
horses, or enters multiple horses for the purpose of showing or 
exhibiting, and a violation of the Act or the regulations is detected 
on any of those horses, the trainer should be suspended for at least 
the minimum period prescribed in Sec.  11.25 for each violation. In 
addition, paragraph (b)(4) of Sec.  11.25 requires multiple suspensions 
to be served consecutively, not concurrently. A trainer who sores a 
horse or otherwise violates the Act should be penalized for the 
violation to ensure that the Act is effectively enforced.
    One commenter stated that APHIS has expressed concerns that the 
trainer who has committed a violation may not always be charged with 
that violation, and stated that the proposed suspensions would 
exacerbate that problem.
    As discussed earlier, the trainer of a horse that is inspected and 
found to be sore or otherwise in violation of the Act will be suspended 
when he or she shows or exhibits that horse or has entered that horse 
for the purposes of showing or exhibiting it. The HIOs are responsible 
for correctly identifying the person who has shown, exhibited, or 
entered a horse when the HIOs enforce penalties. Concerns have been 
expressed to APHIS that trainers will name someone else as responsible 
for a horse that is in violation of the Act or the regulations in order 
to avoid being penalized themselves. We expect the HIOs to handle this 
problem as part of their commitment to enforcing the Act.

Transporters

    In paragraph (b)(2), we proposed to provide that, if a horse is 
found to be bilaterally sore or unilaterally sore, in violation of the 
scar rule, or in violation of the prohibition against the use of 
foreign substances, the transporter of the horse may also be suspended 
if the transporter had reason to believe that the horse was to be 
shown, exhibited, entered for those purposes, sold, auctioned, or 
offered for sale.
    Two commenters expressed concern that persons transporting horses 
would not know whether a horse they were transporting was sore or had a 
scar, and that those persons should not be subject to penalties.
    Section 5 of the Act prohibits the shipping, transporting, moving, 
delivering, or receiving of any horse which is sore with reason to 
believe that such horse while it is sore may be shown, exhibited, 
entered for the purpose of being shown or exhibited, sold, auctioned, 
or offered for sale, in any horse show, horse exhibition, or horse sale 
or auction. The Act only makes an exception for shipping, transporting, 
moving, delivering, or receiving of any horse by a common or

[[Page 33613]]

contract carrier or an employee thereof in the usual course of the 
carrier's business or employee's employment unless the carrier or 
employee has reason to believe that such horse is sore. Therefore, our 
proposed language was consistent with prohibitions in the Act itself. 
It is appropriate to require suspensions for violations of the Act.
    As proposed, paragraph (b)(2) did not directly parallel the 
language in the Act. We have rewritten paragraph (b)(2) in this final 
rule so that it more closely parallels the Act. We believe this will 
make it more clear that such suspensions are required due to violations 
of the Act.
    Normally, a person will receive a penalty for transporting a sore 
horse if that person is also responsible for showing the horse, 
exhibiting the horse, entering or allowing the entry of the horse in a 
show or exhibition, selling the horse, auctioning the horse, or 
offering the horse for sale or auction. If a horse is found to be sore 
during preshow inspection and the horse is obviously lame or has open 
lesions, we would consider the transporter to have had reason to 
believe that the horse is sore and require the HIO to assess and 
enforce a penalty, even if the transporter was not responsible for one 
of the activities listed previously.

Activities Not Permitted During Suspensions

    Proposed paragraph (b)(3) stated that a person who is suspended 
must not be permitted to show or exhibit any horse or judge or manage 
any horse show, horse exhibition, or horse sale or auction for the 
duration of the suspension.
    Three commenters requested that we make changes to this language to 
expand the scope of activities that are prohibited for suspended 
persons. Two stated that we should adopt the language on this topic 
from the 2007-2009 Operating Plan. The Operating Plan stated:

    A person who has been suspended or disqualified as a result of 
an HPA violation shall not: (1) Enter a horse for the purposes of 
showing, exhibiting or selling at auction (``Enter a horse,'' as 
used in this section, shall mean to perform any of the activities 
that are required to be completed before a horse can actually be 
shown or exhibited); (2) show or exhibit a horse at a horse show, 
public auction, or exhibition such as a college football game or 
parade; (3) judge a horse show; (4) enter the show ring during the 
course of a horse show; (5) enter the inspection area or warm-up 
area where previously inspected horses are allowed to await ring or 
sale entry, during the course of a horse show or sale; (6) coach any 
trainer, owner, or exhibitor anytime during the show or exhibit; (7) 
transport horses to shows, exhibitions or public auctions; (8) 
prepare a horse on the sale, show, auction or exhibition grounds; or 
(9) serve as a horse show official. An HIO may employ its own 
procedures to ensure that such suspensions are enforced.

    Another commenter stated that proposed paragraph (b)(3) should be 
changed to clearly prohibit anyone who has been suspended from 
participating at a horse show in any way other than as a spectator. The 
commenter stated that this language already exists in the 2010 Points 
of Emphasis (a guidance document we prepared for HIOs), but should be 
included in the regulations. Further, the commenter stated, the 
prohibition from participating should extend to include coaching via 
electronic or radio communication from the suspended party to anyone 
working with a horse on the grounds or riding it.
    The language in proposed paragraph (b)(3) is taken from the Act 
(specifically, paragraph (c) of section 6). We believe it is 
appropriate to include similar language in the regulations. The 
activities described in the 2007-2009 Operating Plan are all included 
within the prohibition from showing or exhibiting any horse or judging 
or managing any horse show, horse exhibition, or horse sale or auction. 
The 2010 Points of Emphasis states that ``a violator on 
disqualification or suspension may only participate as a spectator at 
the horse show, horse exhibition, horse sale, or horse auction.'' Like 
the 2007-2009 Operating Plan, it goes on to describe specific 
parameters of this prohibition, all of which are included within the 
prohibitions in proposed paragraph (b)(3). We will make guidance 
regarding the activities in which people who are suspended may not 
participate available to HIOs after this final rule becomes effective, 
recognizing that any list of prohibited activities is not necessarily 
exhaustive.

Minimum Penalties

    Paragraph (c) of proposed Sec.  11.25 set out our proposed minimum 
penalties for each type of violation. We received several comments on 
the proposed penalties.

Dismissal of Horses

    A few commenters stated that the only penalty that should be 
assessed when a horse is found to be in violation of the Act is that 
the horse should not be allowed to participate in the horse show, 
exhibition, sale, or auction at which it was inspected. These 
commenters stated that owners of horses would not continue to engage 
trainers whose horses were not allowed to participate after inspection, 
as bringing a horse to a show at which it was not then shown was 
costly. This process would remove the incentive to employ training 
methods and devices that violate the Act.
    Section 4 of the Act states that the management of any horse show 
or horse exhibition shall disqualify any horse from being shown or 
exhibited which is sore or if the management has been notified by a DQP 
that the horse is sore. Thus, such a penalty is the absolute minimum 
necessary for shows and exhibitions to comply with the Act. All of the 
proposed minimum penalties include dismissal of the horse from the 
horse show, exhibition, sale, or auction at which it was presented for 
inspection, not just the class for which the inspection was conducted, 
to provide a further deterrent effect. (The only exception is for a 
fractious or unruly horse that cannot be inspected; such a horse has 
not been found to be in violation of the Act and may be reinspected for 
another class in the same horse show, exhibition, sale, or auction.) 
However, we have found that the minimal self-regulatory effort of 
simply dismissing the horse from the horse show, exhibition, sale, or 
auction has not provided sufficient incentive for individuals to 
eliminate the cruel and inhumane practice of soring horses. Therefore, 
we are requiring that HIOs assess and enforce minimum penalties for 
violations of the Act, to ensure consistent enforcement of the Act.

Requests for Increases in Proposed Penalties and Addition of Penalties 
for Other Violations

    Several commenters asked generally for changes or additions to the 
penalty protocol. Some commenters asked that we add fines to the 
suspension penalties. Some commenters asked that we increase the 
suspension penalties as well, to provide a more substantial deterrent, 
and apply a minimum suspension penalty for all violations, rather than 
varying the penalties based on the type of violation. Some commenters 
addressed each violation listed in proposed paragraph (c) specifically 
and asked that the penalties be increased. One commenter stated that 
the horse on which a violation is found should be suspended for the 
duration of the suspension of the greatest duration of any other party 
related to that violation.
    For horses that are found to be sore, we proposed to require the 
shortest suspension penalties for scar rule violations, with increased 
suspensions for unilateral sore violations and the longest suspensions 
for bilateral sore violations. A few commenters stated

[[Page 33614]]

that both unilaterally sored and bilaterally sored horses are 
considered ``sore'' for the purposes of the Act and thus equal 
penalties should be assessed and enforced in both situations. One 
commenter stated that unilateral sore violations are common to balance 
out the motion of the horse, and recommended that we add penalties for 
unilateral scarring as well. Another commenter noted that violations of 
the scar rule involve evidence of bilateral soring, and recommended 
that penalties for scar rule violations be set equal to those of a 
unilaterally sored horse.
    We proposed to provide penalties that increase with each violation 
for bilateral sore, unilateral sore, and scar rule violations, but not 
for the violations of the equipment-related prohibitions in Sec.  11.2. 
One commenter requested that we establish penalties that increase with 
each violation for such violations. In addition, we did not propose to 
require HIOs to assess and enforce suspension penalties when violations 
of Sec.  11.2 are discovered before or during the show, exhibition, 
sale, or auction; several commenters requested that we require 
penalties for such violations.
    Some commenters requested that we add required minimum penalties 
for violations other than those we included in the proposed rule. Some 
commenters stated that separate minimum penalties should be established 
for pressure shoeing, in which the sole of the horse's foot is made 
sensitive so that standing and walking cause the horse to be in 
constant pain. Some commenters stated that minimum penalties should be 
established for providing false information, for stewarding horses 
(i.e., inflicting pain to distract the horse during DQP or VMO 
inspection), and swapping horses (i.e., substituting a horse that has 
not passed inspection for one that has). Some commenters stated that 
the use of plastic wrap (a common means to apply prohibited substances 
to the horse's forelimbs) or overweight chains on show grounds should 
be subject to minimum penalties.
    We recognize these commenters' desire to ensure that the minimum 
penalties established in Sec.  11.25 are adequate to prevent soring and 
address possible violations of the Act comprehensively. In developing 
the minimum penalty protocol, APHIS took into account the civil and 
criminal penalties set forth in the Act; those penalty structures used 
in previous years, including those penalties included in previous 
Operating Plans; and input we received from industry stakeholders. The 
penalties we proposed are consistent with penalties that have 
historically been required by the industry in its self-regulating 
capacity, dating back to 2001. Our proposal was intended to reflect 
this historical understanding of penalties that are appropriate for 
violations of the Act and require the HIOs to assess and enforce 
consistent penalties while minimizing disruption to the industry.
    For those reasons, we have decided to implement the minimum 
penalties as proposed. In coming show seasons, we will monitor the 
effectiveness of each specific penalty at deterring the violation for 
which the penalty is assessed and enforced. We will also monitor the 
occurrence of violations for which we did not propose to require a 
mandatory minimum penalty. If any of the penalties does not have the 
appropriate deterrent effect, or if we determine that there should be 
minimum penalties for other types of violations, we may propose changes 
in the future along the lines that these commenters suggest.
    Some commenters asked that we require permanent suspension of all 
persons associated with violations of the Act, either after some number 
of violations or upon the first violation. Some commenters also asked 
us to require permanent prohibition of horses found to be in violation 
of the Act from participating in horse shows, exhibitions, sales, or 
auctions. Some commenters supported permanent prohibition particularly 
for horses found to be in violation of the scar rule, since the 
evidence of the violation will by definition continue to manifest 
itself permanently. Other commenters objected to the idea of permanent 
suspensions on people or permanent prohibitions on horses as unfair.
    The Act does not provide APHIS with the authority to permanently 
disqualify horses that have been scarred from soring from competitions, 
nor does APHIS have the authority to permanently disqualify repeat 
violators of the Act. The disqualification provisions and penalty 
provisions are clearly enumerated in the Act. We would not consider it 
appropriate to require HIOs to enforce penalties exceeding those in the 
Act.

Disclosure

    One commenter recommended that the parties involved in any and all 
soring violations be fully and immediately publicly disclosed.
    We make lists of people who have been disqualified through USDA 
action and people who have been suspended through HIO action available 
on the Horse Protection Web site, at http://www.aphis.usda.gov/animal_welfare/hpa_info.shtml. We will continue to do so after this final 
rule becomes effective.

DQPs

    One commenter supported penalties for DQPs who ignore violations.
    Paragraph (f) of Sec.  11.7 provides a process for the cancellation 
of a DQP's license in such circumstances.

Minimum Penalties

    A few commenters expressed concern about APHIS' characterization of 
the penalties included in proposed paragraph (c) as minimum penalties. 
These commenters stated that the phrase ``minimum penalties'' implies 
an open door for more penalties to come later. One commenter asked what 
prevents us from requiring maximum penalties or from taking a horse 
away from an individual who has a penalty assessed for a minor 
infraction.
    The word ``minimum'' in the description of the penalties in Sec.  
11.25 refers to the fact that HIOs are free to require penalties in 
excess of the penalties provided in this final rule.
    As discussed earlier, the penalties we proposed are consistent with 
penalties that have historically been assessed and enforced by the HIOs 
for the violations listed in paragraph (c) of proposed Sec.  11.25. 
However, we will monitor the effectiveness of the penalty protocol, and 
we may propose changes to the penalty protocol in the future. The Act 
does not give us the authority to take a horse away from an individual.

Increasing Penalties for Each Violation

    The penalties for bilateral soring, unilateral soring, and 
violations of the scar rule in proposed paragraph (c) each included 
more severe penalties for repeat offenders, with the third and 
subsequent violations of these prohibitions earning the longest 
suspensions.
    Some commenters objected to this approach. Two requested that there 
be no increase in penalties when a person commits a repeat violation 
(although one made an exception for a habitual offender). Others stated 
that violators should revert to first-offender status after remaining 
violation-free for a certain period of time, thus wiping the slate 
clean. Two of these commenters compared violations of the Act to 
traffic violations, stating that the latter are wiped clean after a 
period of time.
    Another commenter asked whether violations would be erased after 
the suspension is served and any fine required by the HIO is paid. This 
commenter also asked how violations would accumulate.

[[Page 33615]]

    Two commenters supported taking into account all violations in a 
violator's history when assessing penalties. One stated that providing 
a certain period of time after which previous violations no longer are 
considered in penalty assessment only matters to violators, especially 
to those who are or expect to be repeat offenders.
    The penalties in this final rule increase in severity for repeat 
offenders to provide an additional deterrent effect for people who have 
already shown a willingness to violate the Act. Increasing penalties 
when a person repeatedly violates established requirements is a common 
practice to ensure compliance. Violations will accumulate for 
individuals as they are incurred; there will not be an opportunity to 
``wipe the slate clean.'' We do not consider violations of the Act, 
which require deliberate effort on the part of the violator to inflict 
physical pain or distress, inflammation, or lameness on a horse, to be 
comparable to traffic violations.
    One commenter objected to the notion that scar rule penalties 
should escalate with additional violations only if those violations are 
found on the same horse. This commenter stated that showing horses that 
are scarred is as significant a violation as showing horses that are 
bilaterally sore, and that it undermines the effectiveness of the scar 
rule if a violator is allowed to serially scar multiple horses without 
suffering increasing penalties.
    The proposal did not state that penalties would escalate with 
additional violations only if those violations are found on the same 
horse. Penalties will escalate when an individual is found to have 
violated the scar rule multiple times, regardless of the horse on which 
the violation has occurred. For example, if a trainer's horse is found 
to be in violation of the scar rule and it is the trainer's first 
offense, the trainer will be suspended for 2 weeks. If a different 
horse trained by that trainer is found to be in violation of the scar 
rule, that would count as a second violation for that trainer and 
result in the trainer's suspension for 1 month. The same escalation 
process would apply for unilateral or bilateral sore violations. We 
appreciate the opportunity to clarify this point.

Suspensions for Unilateral Sore Violations

    We proposed to require HIOs to assess and enforce penalties for 
unilateral sore violations in paragraph (c)(2) of the proposal. One 
commenter stated that the penalty for unilateral soring makes no sense 
because a person would not sore a horse on only one foot. Such a horse 
would be unlevel and would not perform properly, and thus would be 
excused anyway. Two commenters stated that a horse trainer who is 
soring a horse is not doing so only on one foot, and therefore a 
unilateral soring violation is more likely caused by the inspection 
process.
    As another commenter noted, unilateral sore violations are often 
written when a second-leg examination is equivocal. Therefore, a 
unilateral sore violation may well be evidence of bilateral soring. In 
addition, masking agents are sometimes applied to a horse's forelimbs 
in an attempt to numb the horse to pain and thus pass inspection. A 
horse to which a masking agent has been applied may exhibit a different 
pain response in one forelimb than in the other. As horses that are 
unilaterally sore are considered to be sore under the Act, it is 
appropriate to provide minimum penalties that must be assessed and 
enforced by HIOs when such violations are found.

Suspensions for Scar Rule Violations

    We proposed to require HIOs to assess and enforce penalties for 
scar rule violations in paragraph (c)(3) of the proposal. The proposed 
penalties were suspensions of 2 weeks for the first offense, 60 days 
for the second offense, and 1 year for the third offense. One commenter 
stated that requiring HIOs to assess and enforce a 1-year suspension 
penalty for a third violation of the scar rule was unfair, due to what 
the commenter characterized as the subjectivity and inconsistency in 
the interpretation of the scar rule. The commenter also opposed 
requiring penalties for unilateral sore violations, stating that such 
violations are subject to human factors as well as the reaction of the 
horse to any surrounding stimuli. The commenter recommended that we 
concentrate on bilateral sore violations.
    As discussed earlier, we proposed to require suspensions for scar 
rule and unilateral sore violations that are shorter than those for 
bilateral sore violations, based on historical precedent. However, as 
both horses determined to be in violation of the scar rule and horses 
that are unilaterally sore are considered sore for the purposes of the 
Act, it is appropriate to require that HIOs assess and enforce 
penalties when these violations are discovered.

Open Lesions

    One commenter stated that, in the Strategic Plan,\6\ APHIS treated 
any open lesion, other than those from self-inflicted injures, as a 
violation of the scar rule. The commenter stated that there can be no 
more clear violation of the Act than a horse with an open lesion on the 
pastern or in the pocket. The commenter stated that it is at best 
unclear what penalties APHIS expects HIOs to assess and enforce when 
open lesions are found on a horse.
---------------------------------------------------------------------------

    \6\ The Strategic Plan was designed to increase public-private 
cooperation in eliminating soring. The Operating Plans were created 
to fulfill the goals of the Strategic Plan.
---------------------------------------------------------------------------

    Open lesions fall within the scope of the Act only when they are 
indicative of soring. If a horse has open lesions and is also 
bilaterally or unilaterally sore, the appropriate penalties will apply; 
if a horse has bilateral open lesions that cause it to be considered 
sore under the scar rule, it will be penalized as a scar rule 
violation. As many HIOs have separate penalties for horses with open 
lesions, though, we should note that this final rule does not prevent 
HIOs from continuing to assess and enforce such penalties.

Suspensions for Equipment Violations

    We proposed to require HIOs to assess and enforce penalties for 
violations of the equipment-related prohibitions in Sec.  11.2(b)(1) 
through (b)(10) and (b)(12) through (b)(17) in paragraph (c)(5) of the 
proposal.
    One commenter stated that exhibitors should not be suspended for 
all equipment violations. The commenter cited an example of a pleasure 
horse that had a bit that was one-half inch too long, not intentional 
and not hurting the horse.
    The situation cited by the commenter would not have been a 
violation of the regulations, as the equipment-related prohibitions in 
Sec.  11.2(b)(1) through (b)(10) and (b)(12) through (b)(17) contain no 
reference to the allowable length of bits. The prohibitions in those 
paragraphs prevent the use of equipment that has been shown to be used 
to sore horses. Therefore, we consider it appropriate and necessary to 
require that penalties be assessed and enforced for such violations.

Unruly or Fractious Horses

    For an unruly or fractious horse that cannot be inspected in 
accordance with Sec.  11.21, we proposed in paragraph (c)(8) to require 
the horse to be dismissed from the individual class for which it was to 
be inspected.
    One commenter expressed concern that a fractious horse could result 
in a violation for which people could be banned for the rest of the 
show season.
    As a fractious horse cannot be inspected in accordance with Sec.  
11.21,

[[Page 33616]]

we have no means of determining whether it is sore. Therefore, we did 
not propose to require any penalty for such horses beyond dismissal of 
the horse from the class for which it was being inspected. Such a horse 
could be entered into and inspected for other classes in the same horse 
show, exhibition, sale, or auction.
    One commenter stated that unruly or fractious horses that cannot be 
inspected in accordance with Sec.  11.21 should not be considered to be 
violating the Act, but should simply be deemed ``not qualified to 
compete.''
    We agree with this commenter. Because an unruly or fractious horse 
cannot be inspected to determine whether it is in violation of the Act, 
it is inaccurate to describe such a situation as a violation of the 
Act. To separate the requirement that unruly or fractious horses be 
dismissed from the class for which they are being inspected from the 
violations of the Act listed in paragraph (c), we have moved the unruly 
or fractious horse requirement into a new paragraph (d), and we have 
designated proposed paragraphs (d) and (e) as paragraphs (e) and (f), 
respectively, in this final rule. We have also added a requirement in 
paragraph (a) that HIOs that license DQPs enforce the requirement in 
the new paragraph (d). With these changes, the regulations will require 
unruly or fractious horses to be dismissed from the class for which 
they are being inspected without characterizing such horses as being in 
violation of the Act.

Appeals

    Proposed paragraph (d) of Sec.  11.25 set out a requirement for an 
appeals process for penalties assessed by an HIO. We proposed to 
require that, for all appeals, the appeal must be granted and the case 
heard and decided by the HIO or the violator must begin serving the 
penalty within 60 days of the date of the violation.
    One commenter stated that procedural delays often result in 
suspensions taking effect during the ``off'' season when horse shows 
are not held, which has no negative impact at all on the violators. 
This commenter suggested that we require HIOs to administer suspensions 
quickly after a violation has been found in order to further increase 
the deterrent effect of suspensions, and to require that the 
suspensions be served during the show season. Another commenter 
concurred with the recommendation that suspensions be served during the 
show season, and proposed defining the show season to exclude the 
months of December, January, and February.
    We agree that it is important to administer suspensions quickly 
after a violation has been found. The requirements in paragraph (d) 
ensure that, absent an appeal, all penalties will be enforced within 60 
days after the violation, which we believe is a reasonable amount of 
time to allow an appeal to take place if necessary.
    After considering requiring suspensions to be served during the 
show season, we have determined that it would be difficult to track 
penalties across the different HIOs to ensure both that HIOs are 
adhering to the 60-day requirement in enforcing their suspensions and 
that some or all of the suspensions do not occur during the show 
season. In addition, the show season may vary among HIOs. We are making 
no changes to the proposed rule in response to these comments. However, 
we will monitor the HIOs' implementation of the minimum penalty 
protocol, and if we find that HIOs are attempting to game the system to 
ensure that a disproportionate number of suspensions are served outside 
the regular show season, we will change the regulations in order to 
ensure that the suspension penalties have a stronger deterrent effect.
    We also proposed to require the HIO to submit to the Department all 
decisions on penalty appeals within 30 days of the completion of the 
appeal.
    One commenter stated an assumption that data supporting the 
decision of the HIO regarding violators must be provided along with the 
decision; if this is not the case, the commenter recommended that we 
amend the proposed rule accordingly.
    We did intend to require that the HIO provide evidence supporting 
its decision along with the record of the decision itself when a 
penalty is overturned on appeal. This will allow APHIS to review the 
effectiveness of the appeal process. We have added this requirement to 
the final rule.

HIO Penalties and Government Civil and Criminal Penalties

    Some commenters stated that Federal enforcement proceedings for 
violations for which HIOs have assessed and enforced a penalty would 
put violators in double jeopardy.
    Paragraph (e) of proposed Sec.  11.25 stated that the Department 
would retain the authority to initiate enforcement proceedings with 
respect to any violation of the Act, including violations for which 
penalties are assessed in accordance with proposed Sec.  11.25, and to 
impose the penalties authorized by the Act if the Department determines 
that such actions are necessary to fulfill the purpose of the Act and 
the regulations. In addition, proposed paragraph (e) indicated that the 
Department would reserve the right to inform the Attorney General of 
any violation of the Act or of the regulations.
    We will pursue a Federal enforcement proceeding for a violation for 
which an HIO has assessed and enforced a penalty only when the HIO has 
not properly assessed and enforced the penalty or the violation is so 
egregious that it warrants additional enforcement. We must retain the 
ability to pursue enforcement proceedings in such circumstances to 
ensure that the Act is effectively enforced in cases where the industry 
self-regulatory mechanism is not sufficient.
    The U.S. Constitution's prohibition against double jeopardy, which 
in this case refers to being retried for an offense for which one has 
been found not guilty, applies only to criminal trials. Penalties 
imposed by HIOs are not criminal penalties, and thus double jeopardy is 
not relevant to such penalties.

Economic Issues

    The proposed rule was accompanied by an analysis of the rule's 
potential economic impacts, including its potential impact on small 
entities. The analysis concluded that, since the HIOs already 
administer their own individual penalty protocol for violations of the 
Act, the proposed rule is not expected to impose additional costs upon 
HIOs or show participants (other than those individuals who incur more 
severe penalties because of the rule). The analysis accompanying the 
proposed rule stated that the proposal would not have a significant 
economic impact on a substantial number of small entities.
    Several commenters expressed concern that the proposed rule would 
have a significant effect on the horse industry. One commenter stated 
that the Tennessee Walking Horse industry has a $300 million impact on 
the economy in Tennessee alone and that many in the industry have 
already been irreparably harmed. Commenters generally identified a 
decline in the industry, with some commenters discussing declining sale 
values for young horses and other commenters who supply goods to the 
Tennessee Walking Horse industry stating that their business has been 
down in recent years. One commenter believed that requiring minimum 
penalties would force him to close his horse business, and that many 
others would do the same.
    Two commenters stated that, as trainers, they had seen a drop in 
the number of horses that are in training barns. One HIO commented that 
their

[[Page 33617]]

inspections have dropped by over 30,000 horses, presumably in recent 
years.
    Several commenters noted that many walking horse shows benefit some 
kind of charity. These commenters predicted that the proposed rule 
would lead to charities receiving fewer revenues from such shows due to 
a lack of participation.
    One commenter cited a recent Government Accountability Office (GAO) 
report, ``Horse Welfare: Action Needed to Address Unintended 
Consequences from Cessation of Domestic Slaughter,'' \7\ that included 
an econometric model used to determine what portion of declining horse 
sale prices may have been due to bans on horse slaughter within the 
United States. This commenter asked us to conduct a similar analysis 
analyzing the Department's influence on the decline of the Tennessee 
Walking Horse industry, as expressed in horse sale prices in Tennessee 
and Kentucky.
---------------------------------------------------------------------------

    \7\ Available at http://www.gao.gov/products/GAO-11-228.
---------------------------------------------------------------------------

    Another commenter stated that the Tennessee Walking Horse industry 
has declined more than the horse industry in general, due to factors 
related to the desires of many in the industry to continue soring 
horses and the desires of others not to be associated with such 
activities.
    We do not believe that minimum penalties for violations of the Act 
will necessarily have the effect described by these commenters. People 
who do not violate the Act, for example, will be unaffected; the 
minimum penalty protocol will only affect violators.
    While it is possible that increased penalties for violations of the 
Act could lead to reduced attendance at shows and exhibitions, this is 
not the only possible outcome. The minimum penalties could also lead 
owners and trainers of walking horses, racking horses, and other gaited 
horses to use training methods that do not involve soring. This would 
allow for continued attendance at all shows, including those 
benefitting charities.
    The GAO report cited by one commenter used a hedonic model, a type 
of model that predicts horse prices based on the estimated components 
of the quality (or value) of the horse. Although some commenters 
supplied anecdotal data regarding the walking horse industry, we do not 
have sufficient, broad-based data about the prices of Tennessee Walking 
Horses, racking horses, and other gaited horses to conduct such an 
analysis with respect to our enforcement activities.
    One commenter stated that his HIO had previously implemented the 
proposed penalties voluntarily. As a result, the commenter stated, 
exhibitors who had shown with the HIO the previous year advised the HIO 
that, due to the subjectivity of the inspection process and the 
possibility of receiving an undeserved violation, they could not show 
with the HIO now. The commenter stated that implementation of these 
penalties has already harmed his organization on a small level and 
expressed concern about the effects on the whole industry of mandating 
the penalties in the proposed rule.
    This final rule will put all HIOs in an equivalent competitive 
position with respect to penalties, thus removing the incentive for 
exhibitors to leave organizations such as the commenter's for another 
HIO on the basis of the penalties assessed by that HIO (unless an HIO 
decides to impose penalties greater than those required in Sec.  
11.25).
    Several commenters stated that the Act says that nothing should be 
done to harm the horse industry, and that the proposed rule would do 
exactly that.
    We were unable to determine what section of the Act the commenters 
are referring to. In the Act, however, Congress does find 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. Requiring mandatory minimum penalties for violations of the Act 
will ensure consistency among HIOs and further the purpose of the Act, 
which is to eliminate the cruel and inhumane practice of soring.
    Some commenters expressed concern about the potential impact on 
HIOs of the requirement to provide an appeals process. These commenters 
stated that providing investigative services, gathering witnesses, and 
then absorbing the cost of lawsuits should a party be dissatisfied with 
the outcome of an appeal would present prohibitive costs for HIOs.
    HIOs have existing structures to support these activities. Many 
HIOs currently charge fees for appeals in order to cover the costs of 
such activities. Should there be a significant increase in appeals, we 
expect that HIOs will be able to handle them.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

    This final rule has been determined to be not significant for the 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by the Office of Management and Budget.
    In accordance with the Regulatory Flexibility Act, we have analyzed 
the potential economic effects of this action on small entities. The 
analysis is summarized below. Copies of the full analysis are available 
on the Regulations.gov Web site (see footnote 1 in this document for a 
link to Regulations.gov) or by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT.
    Efforts to eliminate soring have been hindered by the non-uniform 
assessment of penalties for violations of the Act. The rule will 
require HIOs to adhere to a uniform minimum penalty protocol. Also, the 
rule will give USDA the authority to decertify HIOs that refuse to 
implement the minimum penalty protocol.
    Since the HIOs already administer a penalty protocol for violations 
of the Act, the proposed rule is not expected to impose additional 
costs upon HIOs or show participants (other than those individuals who 
incur penalties for violating the Act or the regulations).
    The uniform penalty protocol may benefit the walking horse industry 
by:
     Helping to ensure more humane treatment of the horses;
     Reducing uncertainty about penalties for infractions of 
the Act;
     Enhancing the reputation and integrity of the walking 
horse industry;
     Providing for more fair competition at shows, which may 
positively impact attendance and regional economies; and
     Improving the value of the walking horse breeds.
    The Small Business Administration's (SBA) small-entity standard for 
business associations that promote horses through the showing, 
exhibiting, sale, auction, registry, or any activity which contributes 
to the advancement of the horse is not more than $7 million in annual 
receipts (North American Industry Classification System (NAICS) 
813910). The SBA small-entity standard for entities involved in Horses 
and Other Equine Production is $750,000 or less in annual receipts 
(NAICS 112920), while the small-entity standard is $7 million or less 
in annual receipts for businesses classified within Support Activities 
for Animal Production (NAICS 115210). Businesses that may be affected 
by this rule are likely to be small.
    Under these circumstances, the Administrator of the Animal and 
Plant

[[Page 33618]]

Health Inspection Service has determined that this action will not have 
a significant economic impact on a substantial number of small 
entities.

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 7 CFR part 3015, subpart V.)

Executive Order 12988

    This final 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

    This final rule contains no new information collection or 
recordkeeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

List of Subjects in 9 CFR Part 11

    Animal welfare, Horses, Reporting and recordkeeping requirements.

    Accordingly, we are amending 9 CFR part 11 as follows:

PART 11--HORSE PROTECTION REGULATIONS

0
1. The authority citation for 9 CFR part 11 continues to read as 
follows:

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


Sec.  11.7  [Amended]

0
2. In Sec.  11.7, paragraph (g), the first sentence is amended by 
removing the word ``section'' the second time it appears and adding the 
word ``part'' in its place.


0
3. In Sec.  11.21, the section heading and paragraph (d) are revised to 
read as follows:


Sec.  11.21  Inspection procedures for designated qualified persons 
(DQPs).

* * * * *
    (d) The HIO that licensed the DQP shall assess and enforce 
penalties for violations in accordance with Sec.  11.25 and shall 
report all violations in accordance with Sec.  11.20(b)(4).


0
4. A new Sec.  11.25 is added to read as follows:


Sec.  11.25  Minimum penalties to be assessed and enforced by HIOs that 
license DQPs.

    (a) Rulebook. Each HIO that licenses DQPs in accordance with Sec.  
11.7 must include in its rulebook, and enforce, penalties for the 
violations listed in this section that equal or exceed the penalties 
listed in paragraph (c) of this section and must also enforce the 
requirement in paragraph (d) of this section.
    (b) Suspensions. (1) For the violations listed in paragraph (c) of 
this section that require a suspension, any individuals who are 
responsible for showing the horse, exhibiting the horse, entering or 
allowing the entry of the horse in a show or exhibition, selling the 
horse, auctioning the horse, or offering the horse for sale or auction 
must be suspended. This may include, but may not be limited to, the 
manager, trainer, rider, custodian, or seller, as applicable. In 
addition, if the owner allowed any activity listed in this paragraph, 
the owner must be suspended as well.
    (2) Any person who is responsible for the shipping, moving, 
delivering, or receiving of any horse that is found to be bilaterally 
sore or unilaterally sore as defined in paragraph (c) of this section, 
in violation of the scar rule in Sec.  11.3, or in violation of the 
prohibition against the use of foreign substances in Sec.  11.2(c), 
with reason to believe that such horse was to be shown, exhibited, 
entered for the purpose of being shown or exhibited, sold, auctioned, 
or offered for sale in any horse show, horse exhibition, or horse sale 
or auction, must be suspended; Provided, that this requirement does not 
apply if the horse was transported by a common or contract carrier or 
an employee thereof in the usual course of the carrier's business or 
the employee's employment, unless the carrier or employee had reason to 
believe that the horse was sore.
    (3) A person who is suspended must not be permitted to show or 
exhibit any horse or judge or manage any horse show, horse exhibition, 
or horse sale or auction for the duration of the suspension.
    (4) Any person with multiple suspensions must serve them 
consecutively, not concurrently.
    (c) Minimum penalties--(1) Bilateral sore. A horse is found to be 
sore in both its forelimbs or hindlimbs. The horse must be dismissed 
from the remainder of the horse show, exhibition, sale, or auction. 
First offense: Suspension for 1 year. Second offense: Suspension for 2 
years. Third offense and any subsequent offenses: Suspension for 4 
years.
    (2) Unilateral sore. A horse is found to be sore in one of its 
forelimbs or hindlimbs. The horse must be dismissed from the remainder 
of the horse show, exhibition, sale, or auction. First offense: 
Suspension for 60 days. Second offense: Suspension for 120 days. Third 
offense and any subsequent offenses: Suspension for 1 year.
    (3) Scar rule violation. A horse is found to be in violation of the 
scar rule in Sec.  11.3. The horse must be dismissed from the remainder 
of the horse show, exhibition, sale, or auction. First offense: 
Suspension for 2 weeks (14 days). Second offense: Suspension for 60 
days. Third offense and any subsequent offenses: Suspension for 1 year.
    (4) Foreign substance violations. Violations of the prohibition 
against the use of foreign substances in Sec.  11.2(c).
    (i) Before or during the show, exhibition, sale, or auction. The 
horse must be dismissed from the remainder of the horse show, 
exhibition, sale, or auction.
    (ii) After the show, exhibition, sale, or auction. Suspension for 2 
weeks (14 days). The horse must be dismissed from the remainder of the 
horse show, exhibition, sale, or auction.
    (5) Equipment violation. Violations of the equipment-related 
prohibitions in Sec.  11.2(b)(1) through (b)(10) and (b)(12) through 
(b)(17).
    (i) Before or during the show, exhibition, sale, or auction. The 
horse must be dismissed from the remainder of the horse show, 
exhibition, sale, or auction.
    (ii) After the show, exhibition, sale, or auction. Suspension for 2 
weeks (14 days). The horse must be dismissed from the remainder of the 
horse show, exhibition, sale, or auction.
    (6) Shoeing violation. Violation of the shoeing-related 
prohibitions in Sec.  11.2(b)(18). The horse must be dismissed from the 
remainder of the horse show, exhibition, sale, or auction.
    (7) Heel-toe ratio. Violation of the heel-toe ratio requirement in 
Sec.  11.2(b)(11). The horse must be dismissed from the remainder of 
the horse show, exhibition, sale, or auction.
    (8) Suspension violation. A violation of any suspension penalty 
previously issued. Suspension for an additional 6 months (180 days) for 
each occurrence.
    (d) Unruly or fractious horse. A horse that cannot be inspected in 
accordance with Sec.  11.21. The horse must be dismissed from the 
individual class for which it was to be inspected.
    (e) Appeals. The HIO must provide a process in its rulebook for 
alleged violators to appeal penalties. The process must be approved by 
the

[[Page 33619]]

Department. For all appeals, the appeal must be granted and the case 
heard and decided by the HIO or the violator must begin serving the 
penalty within 60 days of the date of the violation. The HIO must 
submit to the Department all decisions on penalty appeals within 30 
days of the completion of the appeal. When a penalty is overturned on 
appeal, the HIO must also submit evidence composing the record of the 
HIO's decision on the appeal.
    (f) Departmental prosecution. The Department retains the authority 
to initiate enforcement proceedings with respect to any violation of 
the Act, including violations for which penalties are assessed in 
accordance with this section, and to impose the penalties authorized by 
the Act if the Department determines that such actions are necessary to 
fulfill the purpose of the Act and this part. In addition, the 
Department reserves the right to inform the Attorney General of any 
violation of the Act or of this part, including violations for which 
penalties are assessed in accordance with this section.

    Done in Washington, DC, this 31st day of May 2012.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2012-13759 Filed 6-6-12; 8:45 am]
BILLING CODE 3410-34-P