Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 33607 

■ 2. Add at the end of Appendix C to 

Part 5, the following new paragraph 

‘‘68’’: 

Appendix C to Part 5—DHS Systems of 

Records Exempt From the Privacy Act 

* * * * * 

68. The DHS OPS–003 Operations 

Collection, Planning, Coordination, 

Reporting, Analysis, and Fusion System of 

Records consists of electronic and paper 

records and will be used by DHS and its 

components. The DHS OPS–003 Operations 

Collection, Planning, Coordination, 

Reporting, Analysis, and Fusion System of 

Records is a repository of information held 

by DHS to serve its several and varied 

missions and functions. This system also 

supports certain other DHS programs whose 

functions include, but are not limited to, the 

enforcement of civil and criminal laws; 

investigations, inquiries, and proceedings 

there under; national security and 

intelligence activities; and protection of the 

President of the U.S. or other individuals 

pursuant to Section 3056 and 3056A of Title 

18. The DHS OPS–003 Operations Collection, 

Planning, Coordination, Reporting, Analysis, 

and Fusion System of Records contains 

information that is collected by, on behalf of, 

in support of, or in cooperation with DHS 

and its components and may contain 

personally identifiable information collected 

by other federal, state, local, tribal, foreign, 

or international government agencies. This 

system is exempted from the following 

provisions of the Privacy Act pursuant to 5 

U.S.C. 552a(k)(1), (k)(2), (k)(3): 5 U.S.C. 

552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), 

(e)(4)(I); and (f). Exemptions from these 

particular subsections are justified, on a caseby-case basis to be determined at the time a 

request is made, for the following reasons: 

(a) From subsection (c)(3) (Accounting for 

Disclosures) because release of the 

accounting of disclosures could alert the 

subject of an investigation of an actual or 

potential criminal, civil, or regulatory 

violation to the existence of that investigation 

and reveal investigative interest on the part 

of DHS as well as the recipient agency. 

Disclosure of the accounting would therefore 

present a serious impediment to law 

enforcement efforts and/or efforts to preserve 

national security. Disclosure of the 

accounting would also permit the individual 

who is the subject of a record to impede the 

investigation, to tamper with witnesses or 

evidence, and to avoid detection or 

apprehension, which would undermine the 

entire investigative process. 

(b) From subsection (d) (Access and 

Amendment) because access to the records 

contained in this system of records could 

inform the subject of an investigation of an 

actual or potential criminal, civil, or 

regulatory violation to the existence of that 

investigation and reveal investigative interest 

on the part of DHS or another agency. Access 

to the records could permit the individual 

who is the subject of a record to impede the 

investigation, to tamper with witnesses or 

evidence, and to avoid detection or 

apprehension. Amendment of the records 

could interfere with ongoing investigations 

and law enforcement activities and would 

impose an unreasonable administrative 

burden by requiring investigations to be 

continually reinvestigated. In addition, 

permitting access and amendment to such 

information could disclose security-sensitive 

information that could be detrimental to 

homeland security. 

(c) From subsection (e)(1) (Relevancy and 

Necessity of Information) because in the 

course of investigations into potential 

violations of federal law, the accuracy of 

information obtained or introduced 

occasionally may be unclear, or the 

information may not be strictly relevant or 

necessary to a specific investigation. In the 

interests of effective law enforcement, it is 

appropriate to retain all information that may 

aid in establishing patterns of unlawful 

activity. 

(d) From subsections (e)(4)(G), (e)(4)(H), 

and (e)(4)(I) (Agency Requirements) and (f) 

(Agency Rules), because portions of this 

system are exempt from the individual access 

provisions of subsection (d) for the reasons 

noted above, and therefore DHS is not 

required to establish requirements, rules, or 

procedures with respect to such access. 

Providing notice to individuals with respect 

to existence of records pertaining to them in 

the system of records or otherwise setting up 

procedures pursuant to which individuals 

may access and view records pertaining to 

themselves in the system would undermine 

investigative efforts and reveal the identities 

of witnesses, and potential witnesses, and 

confidential informants. 

Dated: June 1, 2012. 

Mary Ellen Callahan, 

Chief Privacy Officer, Department of 

Homeland Security. 

[FR Doc. 2012–13778 Filed 6–6–12; 8:45 am] 

BILLING CODE 9110–9A–P 

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. 

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, 


wreier-aviles on DSK5TPTVN1PROD with RULES
33608 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 

1To view the proposed rule and the comments 

we received, go to http://www.regulations.gov/ 

#!docketDetail;D=APHIS-2011-0030. 

2Available at http://www.usda.gov/oig/webdocs/ 

33601-02-KC.pdf. 

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 

§ 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 § 11.21 of the 

regulations. Paragraph (d) of § 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. 

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 DQPinspected 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. 


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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 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 selfregulatory 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 § 11.21(d) of the 

regulations. However, the industry selfregulatory 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 


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33610 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 

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 

§ 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 § 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 § 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 § 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 § 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, § 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 § 11.3, 

and particularly whether there is any 

evidence of inflammation, edema, or 

proliferating granuloma tissue. Under 

§ 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 § 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 xray examination to determine whether a 

horse’s bones show signs of stress 

indicative of soring. 


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3Haussler, 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. 

4Lists 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. 

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 xray 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 § 11.25 and thus would 

be excused from the class, but would 

not be determined to be sore. 

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. 

It is also essential that we attend 

shows that are affiliated with HIOs in 

order to ensure that the DQPs at those 


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5The 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. 

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 § 11.25 

described various conditions applying 

to suspensions under the minimum 

penalty protocol. For violations for 

which we proposed to require 

suspensions in § 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. 

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 § 11.25 for each 

violation. In addition, paragraph (b)(4) 

of § 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 


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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 § 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 


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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 

§ 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 § 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 § 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 § 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 § 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 

§ 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. 


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6The 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. 

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 selfinflicted 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. 

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 

§ 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 § 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 

§ 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 § 11.21, 


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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 § 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 § 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 § 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 

§ 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 


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7Available at http://www.gao.gov/products/GAO11-228. 

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. 

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 § 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 


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33618 Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 

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 

■ 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. 

§ 11.7 [Amended] 

■ 2. In § 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. 

■ 3. In § 11.21, the section heading and 

paragraph (d) are revised to read as 

follows: 

§ 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 § 11.25 

and shall report all violations in 

accordance with § 11.20(b)(4). 

■ 4. A new § 11.25 is added to read as 

follows: 

§ 11.25 Minimum penalties to be assessed 

and enforced by HIOs that license DQPs. 

(a) Rulebook. Each HIO that licenses 

DQPs in accordance with § 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 § 11.3, or 

in violation of the prohibition against 

the use of foreign substances in 

§ 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 § 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 § 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 

§ 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 

§ 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 

§ 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 § 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 


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Federal Register / Vol. 77, No. 110 / Thursday, June 7, 2012 / Rules and Regulations 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 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 26 

[Docket No. PRM–26–7; NRC–2011–0220] 

Certification of Substance Abuse 

Experts 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Petition for rulemaking; 

consideration in the rulemaking 

process. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC or the Commission) 

will consider in the rulemaking process 

the issues raised in the petition for 

rulemaking (PRM), PRM–26–7, 

submitted by the American Academy of 

Health Care Providers in the Addictive 

Disorders (the Academy or the 

petitioner). The petitioner requested 

that the NRC amend its regulations to 

include the Academy as one of the 

organizations authorized to certify a 

substance abuse expert. The NRC 

determined that the issues raised in the 

PRM are appropriate for consideration 

and will consider them in the ongoing 

Title 10 of the Code of Federal 

Regulations (10 CFR) Part 26 Technical 

Issues rulemaking. 

DATES: The docket for the petition for 

rulemaking, PRM–26–7, is closed on 

June 7, 2012. 

ADDRESSES: Further NRC action on the 

issues raised by this petition will be 

accessible on the Federal rulemaking 

Web site, http://www.regulations.gov, by 

searching on Docket ID NRC–2012– 

0079, which is the rulemaking docket 

for the 10 CFR part 26 Technical Issues 

rulemaking. 

You can access publicly available 

documents related to the petition, 

which the NRC possesses and are 

publicly available, using the following 

methods: 

• Federal Rulemaking Web Site: 

Supporting materials related to this 

petition can be found at http://www.

regulations.gov by searching on the 

Docket IDs for PRM–26–7 or the 10 CFR 

part 26 Technical Issues rulemaking, 

NRC–2011–0220 and NRC–2012–0079, 

respectively. Address questions about 

NRC dockets to Carol Gallagher, 

telephone: 301–492–3668, email: Carol.

Gallagher@nrc.gov. 

• NRC’s Public Document Room 

(PDR): You may examine and purchase 

copies of public documents at the NRC’s 

PDR, O1–F21, One White Flint North, 

11555 Rockville Pike, Rockville, 

Maryland 20852. 

• NRC’s Agencywide Documents 

Access and Management System 

(ADAMS): You may access publicly 

available documents online in the NRC 

Library at http://www.nrc.gov/readingrm/adams.html. To begin the search, 

select ‘‘ADAMS Public Documents’’ and 

then select ‘‘Begin Web-based ADAMS 

Search.’’ For problems with ADAMS, 

contact the NRC’s PDR reference staff at 

1–800–397–4209, 301–415–4737, or by 

email to PDR.Resource@nrc.gov. The 

ADAMS accession number for each 

document referenced in this notice (if 

that document is available in ADAMS) 

is provided the first time that a 

document is referenced. 

FOR FURTHER INFORMATION CONTACT: Paul 

Harris, Office of Nuclear Security and 

Incident Response, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555; telephone: 301–415–1169; 

email: Paul.Harris@nrc.gov; or Scott C. 

Sloan, Office of Nuclear Reactor 

Regulation, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555; 

telephone: 301–415–1619; email: Scott.

Sloan@nrc.gov. 

SUPPLEMENTARY INFORMATION: On 

October 5, 2011 (76 FR 61625), the NRC 

published a notice of receipt (76 FR 

61625) for PRM–26–7. The petitioner 

requested the NRC to amend its 

regulations under 10 CFR 26.187(b)(5) to 

include the Academy as one of the 

organizations authorized to certify a 

substance abuse expert. 

The NRC received one comment 

during the public comment period 

(ADAMS Accession No. ML11341A064), 

which closed on December 19, 2011. 

The commenter, a student pursuing a 

master’s degree in social work, provided 

a statement in support of the Academy’s 

request to amend the NRC’s regulations. 

The commenter stated that by 

‘‘amending the NRC’s regulations to 

include the Academy as an authorized 

organization to certify substance abuse 

experts, more individuals can become 

qualified to provide addiction 

counseling. This would hopefully 

reduce the number of under qualified 

care providers and ensure that the 

clients are receiving the highest level of 

care.’’ 

The NRC determined that the issues 

raised in PRM–26–7 are appropriate for 

consideration and will address them in 

the ongoing 10 CFR part 26 Technical 

Issues rulemaking. Docket No. PRM–26– 

7 is closed. 

Dated at Rockville, Maryland, this 17th day 

of May 2012. 

For the Nuclear Regulatory Commission. 

R.W. Borchardt, 

Executive Director for Operations. 

[FR Doc. 2012–13807 Filed 6–6–12; 8:45 am] 

BILLING CODE 7590–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2011–0719; Directorate 

Identifier 2010–NM–087–AD; Amendment 

39–17074; AD 2012–11–11] 

RIN 2120–AA64 

Airworthiness Directives; The Boeing 

Company Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: We are superseding an 

existing airworthiness directive (AD) for 

certain The Boeing Company Model 

767–200, –300, and –400ER series 

airplanes. That AD currently requires 

replacing the separation link assembly 

on the applicable entry and service 

doors with an improved separation link 

assembly, and doing related 

investigative and corrective actions if 

necessary. This new AD adds an 


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