Horse Protection Act; Requiring Horse Industry Organizations To Assess and Enforce Minimum Penalties for Violations, 30864-30868 [2011-13231]

Agencies

• DEPARTMENT OF AGRICULTURE
• Animal and Plant Health Inspection Service

[Federal Register Volume 76, Number 103 (Friday, May 27, 2011)]
[Proposed Rules]
[Pages 30864-30868]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-13231]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 76, No. 103 / Friday, May 27, 2011 / Proposed 
Rules

[[Page 30864]]



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: Proposed rule.

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SUMMARY: We are proposing to amend 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) and the 
regulations. 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 would strengthen our 
enforcement of the Act and the regulations by ensuring that minimum 
penalties are assessed and enforced consistently by all horse industry 
organizations and associations that are appointed under the Act by the 
U.S. Department of Agriculture to cooperate in our enforcement efforts.

DATES: We will consider all comments that we receive on or before July 
26, 2011.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2011-0030 to submit or view comments and 
to view supporting and related materials available electronically.
     Postal Mail/Commercial Delivery: Please send one copy of 
your comment to Docket No. APHIS-2011-0030, Regulatory Analysis and 
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, 
Riverdale, MD 20737-1238. Please state that your comment refers to 
Docket No. APHIS-2011-0030.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at https://www.aphis.usda.gov.

FOR FURTHER INFORMATION CONTACT: Dr. Rachel Cezar, Horse Protection 
National Coordinator, Animal Care, APHIS, 4700 River Road Unit 84, 
Riverdale, MD 20737; (301) 734-5784.

SUPPLEMENTARY INFORMATION: 

Background

    In 1970, Congress passed the Horse Protection Act (15 U.S.C. 1821-
1831), referred to below as the Act, 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:
     An irritating or blistering agent has been applied, 
internally or externally, by a person to any limb of a horse,
     Any burn, cut, or laceration has been inflicted by a 
person on any limb of a horse,
     Any tack, nail, screw, or chemical agent has been injected 
by a person into or used by a person on any limb of a horse, or
     Any other substance or device has been used by a person on 
any limb of a horse or a person has engaged in a practice involving a 
horse, and, as a result of such application, infliction, injection, 
use, or practice, such horse suffers, or can reasonably be expected to 
suffer, physical pain or distress, inflammation, or lameness when 
walking, trotting, or otherwise moving. (The Act excludes therapeutic 
treatment by or under the supervision of a licensed veterinarian from 
the definition of soring.)
    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, 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.
    The Act and the regulations in Sec.  11.2 prohibit the use of 
devices, methods, and substances that are used to sore horses. For 
example, a person who sores a horse may apply a substance such as 
mustard oil or kerosene above the horse's front hooves, to cause 
lesions. When chains are used on a horse sored in this manner, the 
chains rub against the lesions, causing pain. Thus, the regulations 
prohibit the use of any substance above the hoof, except lubricants 
used in certain circumstances. The use of mechanical agents (also 
referred to as ``action devices'') such as overweight chains or boots 
also cause lesions; the regulations only allow the use of specific 
types of action devices that scientific evidence indicates do not cause 
horses to be sore. Soring can also be accomplished by trimming the hoof 
to expose sensitive tissue, thus making it painful for the horse to 
touch its forelimbs to the ground. This practice is prohibited in

[[Page 30865]]

the regulations. In addition to prohibiting other methods and 
practices, Sec.  11.2 also generally prohibits the use of any device, 
method, practice, or substance that causes or can reasonably be 
expected to cause a horse to be sore.
    A 1976 amendment to the Act provided for 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.
    In response to that amendment to the Act, we established the 
Designated Qualified Persons (DQP) program in a final rule that was 
published in the Federal Register on January 15, 1979 (44 FR 1558-
1566), and effective on January 5, 1979. Under this program, 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). These 
programs must meet the requirements of Sec.  11.7 of the regulations, 
which include requirements for licensing, training, recordkeeping and 
reporting, and standards of conduct, among other things. We certify and 
monitor these HIO programs.
    Under the regulations, show management has the option to either 
assume liability for any sore horses that are shown, exhibited, sold, 
or auctioned, or to hire DQPs to conduct preshow inspections of each 
horse entered in an event. Any horses found by the DQP to be sore, 
found to be subject to the scar rule in Sec.  11.3, or found to have 
been subjected to any of the prohibited practices or devices listed in 
Sec.  11.2 must be reported to show management. (The scar rule is used 
to determine whether a horse bears evidence of past soring, such as 
bilateral lesions or inflammation, which are indicative of abuse. If 
the horse does not meet the requirements of the rule, the horse is 
considered to be sore for the purposes of the Act and the regulations.) 
Show management must then exclude those horses from being shown, 
exhibited, sold, or auctioned.
    Rather than contract with DQPs directly, show management typically 
contracts with an HIO to provide inspections at its show, exhibition, 
sale, or auction. The HIO provides as many DQPs as are needed to 
provide inspections and pays the DQPs for their services.
    DQPs inspect horses according to procedures set out in Sec.  11.21 
of the regulations. This section provides detailed instructions on how 
to examine a horse for signs of soring, requires the DQP to examine the 
horse to ensure that no devices and methods used on the horse are 
prohibited by the regulations in Sec.  11.2, and sets out the 
conditions under which horses must be inspected. It also allows DQPs to 
carry out additional inspection procedures as deemed necessary to 
determine whether a horse is sore.
    The Act provides us with the authority to pursue civil and criminal 
penalties against persons who violate the Act. However, such 
proceedings may be time-consuming and expensive, and our resources for 
prosecuting such cases are limited. In addition to statutory penalties, 
HIOs may also enforce their own penalties against persons who are found 
by a DQP licensed by the HIO to be in violation of the Act or the 
regulations. This allows for greater enforcement of the Act and the 
regulations. We do not typically pursue civil or criminal penalties 
against violators of the Act or the regulations when we determine that 
an HIO-imposed penalty is adequate to effectuate the purposes of the 
Act and the regulations.
    Accordingly, paragraph (d) of Sec.  11.21 requires the certified 
DQP organization (i.e., the HIO) under which the DQP is licensed to 
assess appropriate penalties for violations, as set forth in the rule 
book of the certified program under which the DQP is licensed, or as 
set forth by the U.S. Department of Agriculture (the Department). In 
addition to the DQP's report to show management, the HIO must also 
report all violations to show management.

Office of the Inspector General Audit Report and Recommended Minimum 
Penalties

    In September 2010, the Department's Office of the Inspector General 
(OIG) issued an audit report \1\ 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.
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    \1\ Available at https://www.usda.gov/oig/webdocs/33601-02-KC.pdf.
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    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. 
Having consistent penalties would result in more effective enforcement 
of the Act and its regulations.
    We agreed with this recommendation. We had recognized this problem 
before the issuance of the audit report and developed a minimum penalty 
protocol that we intended for every HIO to include in its rule book. In 
developing the protocol, APHIS took into account the civil and criminal 
penalties set forth in the Act, those penalty structures used in 
previous years, rulings of the Department's Administrative Law Judges 
and the Department's Judicial Officer, and input we received from 
industry stakeholders. In most cases, the penalties provided in the 
protocol are substantially less than those set forth in the Act.
    We began notifying HIOs as early as May 2010 that the new protocol 
should be added to 2011 rule books by the end of 2010. We wrote to the 
HIOs formally twice and engaged in numerous meetings and conversations 
with them during 2010 in an attempt to reach an agreement on a protocol 
that all of them would adopt. Eight of the 12 HIOs that license DQPs 
agreed to adopt the minimum penalty protocol we proposed; 
unfortunately, we were unable to reach an agreement with the remaining 
HIOs. We have determined to seek public input on the penalties 
contained in the protocol before implementing the protocol as a 
mandatory minimum set of penalties for every HIO that licenses DQPs.
    Accordingly, we are proposing to amend the regulations by removing 
the reference in Sec.  11.21(d) to assessing penalties set forth in the 
rule book of the certified program under which the DQP is licensed. 
Instead, that paragraph would require HIOs to assess and enforce 
penalties for violations in accordance with a new Sec.  11.25, which we 
are proposing to add to the regulations and which would contain the 
penalty protocol. The reporting requirement in Sec.  11.21(d) would 
remain unchanged.

Minimum Penalty Protocol

    Proposed Sec.  11.25 would be headed ``Minimum penalties to be 
assessed and enforced by HIOs that license DQPs.''
    Paragraph (a) of proposed Sec.  11.25 would require each HIO that 
licenses DQPs in accordance with Sec.  11.7 to include in its rulebook, 
and assess and enforce, penalties for the violations

[[Page 30866]]

listed in proposed Sec.  11.25 that equal or exceed the penalties 
listed in that section. Section 11.41 of the regulations requires each 
HIO to submit its rulebook to APHIS.
    Paragraph (b) of proposed Sec.  11.25 would provide information 
about suspensions, which is one type of penalty we are proposing to 
require that HIOs assess and enforce. For violations that require a 
suspension, we are proposing to require the suspension of individuals 
including, but not limited to, the owner, manager, trainer, rider, 
custodian, and 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.
    If a horse is found to be bilaterally sore (i.e., sored on both 
forelimbs or hindlimbs), unilaterally sore, in violation of the scar 
rule in Sec.  11.3, or in violation of the prohibition against the use 
of foreign substances in Sec.  11.2(c), we would provide that 
transporters may be suspended as well, 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. The violations listed 
may be evident during transportation of a horse, and section 1824 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 those 
purposes, sold, auctioned, or offered for sale.
    We are proposing to require that a person who is suspended 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. This proposed change is consistent with the Act and 
would ensure that any suspension imposed by an HIO would not be 
circumvented by the suspended person.
    We are also proposing to require any person with multiple 
suspensions to serve them consecutively, not concurrently. Allowing 
suspensions to be served concurrently would limit the deterrent effect 
of the suspensions.
    Paragraph (c) of proposed Sec.  11.25 would set out the minimum 
penalties for each type of violation. We note the Act provides for 
various civil penalties, among other things, disqualification from 
showing or exhibiting any horse and from judging or managing any horse 
show, horse exhibition, or horse sale or auction for a period of not 
less than 1 year for the first violation and not less than 5 years for 
any subsequent violation.
    A bilateral sore violation occurs when a horse is inspected in 
accordance with Sec.  11.21 and found to be sore in both its front 
forelimbs or hindlimbs. This is strong evidence of soring to produce 
the exaggerated gait mentioned earlier, since the horse is unlikely to 
have developed sores in either both of its forelimbs or hindlimbs 
naturally. For bilateral sore violations, we propose to require a 
minimum suspension of 1 year for the first offense, 2 years for the 
second offense, and 4 years for the third and any subsequent offenses.
    A unilateral sore violation occurs when a horse is inspected in 
accordance with Sec.  11.21 and found to be sore in one of its 
forelimbs or hindlimbs. Such soring is a violation of the Act. For 
unilateral sore violations, we propose to require a minimum suspension 
of 60 days for the first offense, 120 days for the second offense, and 
1 year for the third and any subsequent offenses.
    A scar rule violation occurs when a horse is inspected in 
accordance with Sec.  11.21 and found to be in violation of the scar 
rule in Sec.  11.3. For scar rule violations, we propose to require a 
minimum suspension of 2 weeks for the first offense, 60 days for the 
second offense, and 1 year for the third and any subsequent offenses. 
If a DQP inspects a horse and finds it to be both in violation of the 
scar rule and bilaterally sore, the HIO would be required to impose the 
penalty for bilateral soring.
    For the soring and scar rule violations, we are also proposing to 
require the horse to be dismissed from the remainder of the horse show, 
exhibition, sale, or auction. This dismissal would not be limited to 
the individual class in which the horse was to be entered; rather, the 
horse would be ineligible to participate in the entire event.
    Foreign substance violations occur when the prohibition in Sec.  
11.2(c) against the use of foreign substances other than lubricants is 
violated. Equipment violations occur when the prohibitions against use 
of certain types of equipment in Sec.  11.2(b)(1) through (b)(10) and 
(b)(12) through (b)(17) are violated. These prohibitions can be 
violated after inspection by a DQP, for example, by adding a foreign 
substance or a chain weighing greater than 6 ounces in the warmup ring.
    For foreign substance violations and equipment violations found 
before or during the inspection before the show, exhibition, sale, or 
auction, we are proposing to require the horse to be dismissed from the 
remainder of the horse show, exhibition, sale, or auction. This 
dismissal prevents the horse from being shown, exhibited, sold, or 
auctioned in violation of the Act.
    However, Sec.  11.20 of the regulations requires the DQP to 
reinspect all Tennessee Walking Horses or racking horses tyed first in 
their class or event at any horse show, horse exhibition, horse sale, 
or horse auction, to determine whether the horse is sore or otherwise 
in violation of the Act or the regulations. When a violation is 
discovered after the show, the horse has been shown, exhibited, sold, 
or auctioned while in violation of the Act or the regulations 
promulgated under the Act, and the violation has taken place after the 
inspection. Therefore, we are proposing to require that any violation 
discovered after the show, exhibition, sale, or auction result in the 
imposition of a 2-week suspension in addition to dismissal of the horse 
from the remainder of the horse show, exhibition, sale, or auction.
    Shoeing violations occur when the prohibitions regarding the 
shoeing of horses in Sec.  11.2(b)(18) are violated. Heel-toe ratio 
violations occur when the requirement in Sec.  11.2(b)(11) that a 
horse's toe length not exceed the height of the heel by 1 inch or more 
is violated. These violations are not practical to commit in the warmup 
ring, and therefore it is not necessary to differentiate between 
preshow and postshow violations. Accordingly, when these violations are 
found, we are proposing to require the horse to be dismissed from the 
remainder of the horse show, exhibition, sale, or auction.
    If a horse is unruly or fractious and cannot be inspected by a DQP 
in accordance with Sec.  11.21, there is no way to determine through 
inspection that it is not in violation of the Act and the regulations. 
Therefore, we are proposing to require such a horse to be dismissed 
from the individual class for which it was to be inspected. Such a 
horse would be able to attempt inspection again in another class in the 
horse show, exhibition, sale, or auction, and if it could be inspected, 
it could be entered in that class.
    Finally, we are proposing to require that any person who in any way 
violates a previously issued suspension penalty be suspended for an 
additional 6 months.
    Paragraph (d) of proposed Sec.  11.25 would discuss appeals of 
penalties. We believe it is essential for each HIO that would assess 
and enforce penalties in accordance with proposed Sec.  11.25 to have 
an adequate appeal process in place. Therefore, we are proposing to 
require the HIOs to develop such a process, which we would need to

[[Page 30867]]

approve. For all appeals, the appeal would have to be granted and the 
case heard and decided by the HIO or the violator would have to begin 
serving the penalty within 60 days of the date of the violation. This 
would mean that an appeal would need to be filed and a decision made 
with respect to that appeal within 60 days. HIOs would be free to set 
whatever policies they determine to be necessary to meet that 
requirement. We are proposing this requirement to ensure that 
suspensions have the proper deterrent effect and that appeals are not 
used solely to delay suspensions.
    We would require HIOs to submit to the Department all decisions on 
penalty appeals within 30 days of the completion of the appeal, so we 
could monitor the appeal process.
    Paragraph (e) would state that 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 proposed Sec.  11.25, and to impose the penalties 
authorized by the Act if the Department determines that such actions 
are necessary to fulfill the purpose of the Act and the regulations. In 
addition, paragraph (e) would indicate that the Department reserves the 
right to inform the Attorney General of any violation of the Act or of 
the regulations. The latter provision is consistent with section 1826 
of the Act.

Miscellaneous Changes

    As noted earlier, the regulations in Sec.  11.21(d) refer to the 
``certified DQP organization.'' Such an organization is commonly 
referred to as an HIO; references to organizations that certify DQPs in 
Sec.  11.7 refer to HIOs having a Department-certified DQP program. In 
order to be consistent with common usage and other regulations, we are 
proposing to change the reference to ``certified DQP organization'' in 
Sec.  11.21(d) to instead refer to ``the HIO that licensed the DQP.''
    The regulations in paragraph (g) of Sec.  11.7 provide a process 
for revoking the DQP program certification of HIOs. That paragraph 
describes the reason for revoking a DQP program certification as a 
failure to comply with the requirements of Sec.  11.7. As additional 
requirements for HIOs with DQP program certifications would now be 
found in Sec.  11.25, we are proposing for clarification to amend Sec.  
11.7(g) to refer to failure to comply with the requirements of 9 CFR 
part 11 in general as a reason for revoking DQP program certification.

Future Changes

    As noted earlier, the OIG audit found that APHIS' program for 
inspecting horses for soring is not adequate to ensure that these 
animals are not being abused. Our responses to the audit report's 
recommendations included commitments to make several changes to the 
regulations besides those proposed in this document. We intend to 
propose those changes in a separate document, which is currently under 
development.
    After establishing the DQP program in the January 1979 final rule 
mentioned earlier, we made several other changes to the regulations in 
a final rule published in the Federal Register on April 27, 1979 (44 FR 
25172-25184), and effective on May 17, 1979. Some commenters on the 
proposed rule that preceded these final rules, which was published in 
the Federal Register on April 28, 1978 (43 FR 18514-18531), stated that 
APHIS should ban the use of all devices except protective boots.
    We stated in the April 1979 final rule that such action was 
unwarranted at that time. However, we continued, if the horse industry 
made no effort to establish a workable self-regulatory program for the 
elimination of sore horses, or if such a program was established but 
did not succeed in eliminating the sore horse problem within a 
reasonable length of time, we would give serious consideration to the 
prohibition of all action devices and pads.
    Thirty-two years after the publication of the April 1979 final 
rule, the state of the industry suggests that it has not eliminated the 
cruel and inhumane practice of soring horses to alter their natural 
gait in order to gain a competitive advantage. We are proposing the 
changes in this document, as well as the changes in the forthcoming 
separate proposal, with the expectation that they will enable the Horse 
Protection program to successfully eliminate what Congress identified 
as the cruel and inhumane practice of soring. However, if these 
regulatory changes and the resulting changes in the Horse Protection 
program do not result in the elimination of soring, we will seriously 
consider taking substantially more restrictive action, including, but 
not limited to, prohibiting the use of all action devices and pads, to 
accomplish the goal set forth by Congress in the Act.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed 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 
by contacting the person listed under FOR FURTHER INFORMATION CONTACT 
or on the Regulations.gov Web site (see ADDRESSES above for 
instructions for accessing Regulations.gov).
    This proposed rule would amend the regulations to set a uniform 
minimum penalty protocol, which would ensure the uniform application of 
penalties by HIOs. The rule would also give USDA the authority to 
decertify HIOs that refuse to implement the minimum penalty protocol.
    Since the HIOs already administer their own individual penalty 
protocols for violations of the Horse Protection 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 proposed 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 Horse Protection 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.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
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 proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. It is not intended to have retroactive effect. 
The Act does not provide administrative procedures which must be 
exhausted prior to a

[[Page 30868]]

judicial challenge to the provisions of this rule.

Paperwork Reduction Act

    This proposed 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 propose to amend 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.


Sec.  11.7  [Amended]

    2. In Sec.  11.7, paragraph (g), the first sentence is amended by 
removing the word ``section'' the second time it appears and adding the 
word ``part'' in its place.
    3. In Sec.  11.21, the section heading and paragraph (d) are 
revised to read as follows:


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

* * * * *
    (d) The HIO that licensed the DQP shall assess and enforce 
penalties for violations in accordance with Sec.  11.25 and shall 
report all violations in accordance with Sec.  11.20(b)(4).
    4. A new Sec.  11.25 is added to read as follows:


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

    (a) Rulebook. Each HIO that licenses DQPs in accordance with Sec.  
11.7 must include in its rulebook, and enforce, penalties for the 
violations listed in this section that equal or exceed the penalties 
listed in paragraph (c) of this section.
    (b) Suspensions. (1) For the violations listed in paragraph (c) of 
this section that require a suspension, 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 must be suspended.
    (2) If a horse is found to be bilaterally sore or unilaterally sore 
as defined in paragraph (c) of this section, in violation of the scar 
rule in Sec.  11.3, or in violation of the prohibition against the use 
of foreign substances in Sec.  11.2(c), 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.
    (3) A person who is suspended must not be permitted to show or 
exhibit any horse or judge or manage any horse show, horse exhibition, 
or horse sale or auction for the duration of the suspension.
    (4) Any person with multiple suspensions must serve them 
consecutively, not concurrently.
    (c) Minimum penalties--(1) Bilateral sore. A horse is found to be 
sore in both its forelimbs or hindlimbs. The horse must be dismissed 
from the remainder of the horse show, exhibition, sale, or auction. 
First offense: Suspension for 1 year. Second offense: Suspension for 2 
years. Third offense and any subsequent offenses: Suspension for 4 
years.
    (2) Unilateral sore. A horse is found to be sore in one of its 
forelimbs or hindlimbs. The horse must be dismissed from the remainder 
of the horse show, exhibition, sale, or auction. First offense: 
Suspension for 60 days. Second offense: Suspension for 120 days. Third 
offense and any subsequent offenses: Suspension for 1 year.
    (3) Scar rule violation. A horse is found to be in violation of the 
scar rule in Sec.  11.3. The horse must be dismissed from the remainder 
of the horse show, exhibition, sale, or auction. First offense: 
Suspension for 2 weeks. Second offense: Suspension for 60 days. Third 
offense and any subsequent offenses: Suspension for 1 year.
    (4) Foreign substance violations. Violations of the prohibition 
against the use of foreign substances in Sec.  11.2(c).
    (i) Before or during the show, exhibition, sale, or auction. The 
horse must be dismissed from the remainder of the horse show, 
exhibition, sale, or auction.
    (ii) After the show, exhibition, sale, or auction. Suspension for 2 
weeks (14 days). The horse must be dismissed from the remainder of the 
horse show, exhibition, sale, or auction.
    (5) Equipment violation. Violations of the equipment-related 
prohibitions in Sec.  11.2(b)(1) through (b)(10) and (b)(12) through 
(b)(17).
    (i) Before or during the show, exhibition, sale, or auction. The 
horse must be dismissed from the remainder of the horse show, 
exhibition, sale, or auction.
    (ii) After the show, exhibition, sale, or auction. Suspension for 2 
weeks (14 days). The horse must be dismissed from the remainder of the 
horse show, exhibition, sale, or auction.
    (6) Shoeing violation. Violation of the shoeing-related 
prohibitions in Sec.  11.2(b)(18). The horse must be dismissed from the 
remainder of the horse show, exhibition, sale, or auction.
    (7) Heel-toe ratio. Violation of the heel-toe ratio requirement in 
Sec.  11.2(b)(11). The horse must be dismissed from the remainder of 
the horse show, exhibition, sale, or auction.
    (8) Unruly or fractious horse. A horse that cannot be inspected in 
accordance with Sec.  11.21. The horse must be dismissed from the 
individual class for which it was to be inspected.
    (9) Suspension violation. A violation of any suspension penalty 
previously issued. Suspension for an additional 6 months (180 days) for 
each occurrence.
    (d) Appeals. The HIO must provide a process in its rulebook for 
alleged violators to appeal penalties. The process must be approved by 
the 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.
    (e) 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 23rd day of May 2011.
Kevin Shea,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2011-13231 Filed 5-26-11; 8:45 am]
BILLING CODE 3410-34-P