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