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AMHA Files Comments with USDA



AMHA President Jeff Gove submitted the AMHA's official comment regarding the new proposed USDA rules governing the Horse Protection Act. The comment follows:


 

 American Morgan Horse Association
4066 Shelburne Rd, Suite 5
Shelburne, VT 05482
T: (802) 985-4944
F: (802) 985-8897 

 October 19, 2016 

Submitted Electronically via Regulations.gov 

Dr. Kay Carter-Corker 

Assistant Deputy Administrator 

APHIS-2011-0009 

Regulatory Analysis and Development, PPD, APHIS 

Station 3A-03.8 

4700 River Road Unit 118 

Riverdale, MD 20737-1238 

RE: Docket No. APHIS-2011-0009 Horse Protection: Licensing of Designated Qualified Persons and Other Amendments 

Dear Dr. Carter-Corker: 

This letter is in response to the United States Department of Agriculture’s request for comments on the proposed horse protection rule regarding the Licensing of Designated Qualified Persons and Other Amendments that appeared in the Federal Register on July 26, 2016 (“proposed rule”)(81 FR 49112). The American Morgan Horse Association Inc. (AMHA) exists to preserve, promote, perpetuate the Morgan horse. Founded in 1909, the Morgan Horse Club (as it was then called) was formed to support the Morgan breed. The club grew and evolved and in 1971 underwent a reorganization and was renamed the American Morgan Horse Association to reflect its increasing responsibilities. The newly formed association offices were in Hamilton, New York, for a number of years with brief moves to both New Hartford and Westmoreland, New York. In 1988, the Association established its headquarters in Shelburne, Vermont. 

Today there are approximately 90,000 living Morgans registered with AMHA. The Association carries out administration, promotion and education for the benefit of its members and the breed. AMHA serves approximately 7,000 active members, 50 recognized clubs, and 20 youth clubs. 

On behalf of its membership, AMHA appreciates the opportunity to provide comments and additional information to assist APHIS in its development of the proposed rule to ensure it protects horse welfare, reflects the needs of the show horse industry and is consistent with the intent and language of the Horse Protection Act (“HPA”). AMHA is supportive of APHIS’ intention to protect the integrity of the inspection system and strengthen existing requirements to prevent the cruel and inhumane practice of soring, however; AMHA cannot support the proposed rule as drafted. AMHA feels the proposed rule exceeds the Agency’s statutory authority under the HPA and contains a number of provisions with vague language that may result in confusion, uncertainty and unintended detrimental impacts to trotting breeds that have no history of soring. To prevent these outcomes, AMHA believes the following modifications and clarifications must be made to ensure the proposed rule remains within the confines of the statutory authority granted by Congress, is easily understood by AMHA’s members, and is consistently applied by APHIS: 

? Removal of the undefined and ambiguous terms “related breeds” and “related breeds of horses that perform with an accentuated gait that raises concerns about soring”; 

? Clarification that the prohibition on substances (including, but not limited to, topical antibiotic cream, liniment, and fly spray) will continue only to apply to breeds with a history of soring, namely the Tennessee Walking Horse, Racking Horse and Spotted Saddle Horse; 

? Clarification that pads, wedges and bands will only be prohibited for breeds with a history of soring, namely the Tennessee Walking Horse, Racking Horse and Spotted Saddle Horse. 

? Recognition that the breeds affiliated with the USEF should not be subject to an additional and redundant level of oversight under the proposed rules. 

 

As explained in more detail below, the HPA is clearly directed at soring in the Tennessee Walking Horse, Racking Horse and Spotted Saddle Horse industries, as those are the only breeds where “soreness improves the performance” of the horse. Expansion of the regulations to trotting breeds that have no history of soring, and which, in fact, have an incentive to prevent soring, has no rational basis, is contrary to Congressional intent and the plain language of the HPA, would waste scarce Agency resources and is vulnerable to legal challenges that would unnecessarily delay implementation of the rule. 

AMHA also is concerned the proposed rule as drafted will have a significant economic impact on trotting breeds that have no history of soring. APHIS appears to be operating under the incorrect impression that the proposed rules will not affect the trotting horse industry. As a result, the regulatory impact analysis is factually and legally insufficient, as it fails to account for hundreds of millions of dollars of annual impacts on breeds other than walking and racking horses, and does not properly recognize that the proposed rule as drafted is “economically significant.” Economically significant rules, such as the current draft of the proposed rule, are classified by the Office of Management and Budget (“OMB”) as Major Rules and such rules require a more detailed cost-benefit analysis. The failure to perform such analysis not only results in an uninformed, arbitrary and capricious rule, it leaves the agency open to reversal by the courts. 

Finally, AMHA wishes to expresses its support for the comments filed by the American Horse Council, Dr. Scott Bennett and Dr. Clif Paulsen, among others. AMHA recognizes that APHIS has received many comments and therefore focuses its comments on the application of the proposed rule to trotting breeds, which have a distinct interest in this rulemaking docket. 

I. As Currently Drafted, the Proposed Rule Exceeds USDA’s Statutory Authority Under the Horse Protection Act 

The HPA was enacted by Congress in 1970 and amended in 1976 to eliminate the soring of horses, as Congress found the practice was inhumane and horses which are sore compete unfairly with horses that are not sore. 15 U.S.C. § 1822. The enactment of the HPA was based on the well-documented history of soring in Tennessee Walking Horse industry. Soring in the walking house industry is aimed at producing an exaggerated show gait for competition, known as the “Big Lick.” While this gait can be obtained through legitimate methods, some trainers may sore a horse in an attempt to produce a similar, but more exaggerated, gait. Such a gait is possible to be displayed without obvious lameness because these horses are shown at a running walk, as they are incapable of trotting. There is really no question that soring horses to obtain a specific gait, and therefore a competitive advantage, is the precise practice Congress sought to prohibit through enactment of the HPA, and should be the focus of the proposed regulations. 

The plain language of the HPA makes the intent of Congress crystal clear: 

Congress finds and declares that-- 

(1) the soring of horses is cruel and inhumane; [and] 

(2) horses shown or exhibited which are sore, where such soreness improves the performance of such horse, compete unfairly with horses which are not sore; 

15 U.S.C. § 1822.

Courts have also noted this fact, finding that the “Horse Protection Act is directed against the practice of deliberately ‘soring’ Tennessee Walking Horses.”1 Indeed, even APHIS has recognized this clear intent on its own website: “Congress found and declared that the soring of horses is cruel and inhumane, and that sored horses, when shown or exhibited, compete unfairly with horses that are not sore.” (Exhibit 1.) APHIS and the trotting horse industry have long known that soring does not occur in horses that trot, as the lameness would be obvious in a horse shown at a trot. In such competitions, a sored horse would be disqualified or would finish last. Indeed, the Tennessee Walking Horse, Racking Horse and Spotted Saddle Horse breeds are not eligible to participate in USEF sponsored or sanctioned competitions, as the breeds are not recognized by USEF due to their history of soring. The HPA regulations enacted in 1979 note the Congressional mandate by specifically identifying the breeds where inspections to prevent soring is required: 

The management of every horse show, horse exhibition, or horse sale or auction, containing Tennessee Walking Horses or racking horses, shall provide, without fee, sufficient space and facilities for APHIS representatives to carry out their duties under the Act and regulations at every horse show, horse exhibition, or horse sale or auction, containing Tennessee Walking Horses or racking horses, whether or not management has received prior notification or otherwise knows that such show may be inspected by APHIS. 

9 C.F.R. § 11.6 (emphasis added). 

Even in the text of the proposed rule itself, APHIS appears to recognize that events where soreness does not improve the performance of a horse are not within the intent of Congress to be covered by the HPA. However, the proposed rule does so selectively and arbitrarily by excluding only “events where speed is the prime factor, rodeo events, parades, or trail rides” from the definitions of a “horse exhibition” and “horse show”. Section 11.1. APHIS provides no rationale or reason why such events would be excluded under the proposed rule, but horse shows, where a horse is shown at a trot – events where, like a race, a trainer has an overwhelming incentive to prevent soring – are not excluded. 

The law is unambiguous that “[w]here Congress has established a clear line, the agency cannot go beyond it.”2 The recent 2015 decision by the U.S. Court of Appeals for the Fifth Circuit in Contender Farms is instructive as to the clear limits of USDA authority under the HPA. In Contender Farms, the Court found USDA’s final rule creating a mandatory, private enforcement scheme administered by Horse Industry Organizations was “plainly outside the USDA's statutory authority.” Key to the Court’s analysis was the clear intent of Congress and the plain language of the HPA. Here there can be no doubt that Congress enacted the HPA for a clear, specific purpose – to eliminate the inhumane practice of soring of horses where horses that are sore compete unfairly with horses that are not sore. 15 U.S.C. § 1822. However, as drafted the proposed rule crosses the line and exceeds the Congressional grant of authority by seeking to regulate activities where  soreness is a detriment, not a benefit. AMHA urges APHIS to stick to its mission from Congress to eliminate soring by focusing on the breeds in which soring actually occurs: the Tennessee Walking Horse, Racking Horse and Spotted Saddle Horse. 

II. APHIS should eliminate the undefined and ambiguous terms “related breeds” and “related breeds of horses that perform with an accentuated gait that raises concerns about soring” 

 

Of significant concern to AMHA and its members is the proposed rule’s expansion of the breeds covered by the HPA regulations to “related breeds” and “related breeds of horses that perform with an accentuated gait that raises concerns about soring.”3 These undefined terms are impermissibly vague on their face as they could include any horse breed, subjecting industries with no history of soring or incentive to sore to the HPA regulations. The proposed rules fail to provide any limitation as to how closely a breed must be related to Tennessee Walking Horses or Racking Horses, what type of accentuated gaits raise concerns about soring, what process will be used to determine whether a particular accentuated gait raises concerns about soring or even who will make this determination. Any horse with a naturally accentuated gait or even one that simply has a high step is potentially at risk of being subject to the proposed rule. Such ambiguity not only undermines efficient enforcement of the regulations by requiring costly and unnecessary litigation over whether a particular breed is a “related breed,” it threatens the validity of the rule itself. 


The HPA regulations have long focused specifically on the Tennessee Walking Horse and Racking Horses. 9 C.F.R. Part 11. The reason for this focus was clearly stated by APHIS when it promulgated the final 1979 HPA regulations: “It has been the Department’s experience over the past 7 or 8 years that the types of horses usually subjected to soring practices has been the Tennessee Walking Horses and, to a lesser extent, racking horses.” 44 FR 25175 (Exhibit 2, emphasis added). 

If, based on APHIS’ experience in the last 37 years, it believes additional breeds should be included under the HPA regulations the solution is clear: it should simply identify those breeds. This could easily be accomplished by identifying the breeds to be covered as a defined term or simply including the breeds in the place of the terms: “related breeds” and “related breeds of horses that perform with an accentuated gait that raises concerns about soring.” Breeds not intended to be covered, such as trotting breeds, should be specifically excluded from the application of the proposed regulations. Such an approach ensures the scope of HPA regulations apply to breeds where “soreness improves the performance” of the horse – the stated intent of Congress. 

 

AMHA believes the intent of APHIS is to continue to focus its enforcement on the Tennessee Walking Horse, Racking Horse and Spotted Saddle Horse industries, where soring is known to occur. However, the use of the term “related breeds” muddies the regulatory waters making it unclear which breeds are covered and which are not. Such ambiguity regarding the applicability of the regulations themselves is unacceptable. AMHA urges APHIS to revise the proposed rule to eliminate this undefined and ambiguous term. 

A. Unlike Walking and Racking horses, trotting breeds have no history of soring or any incentive to sore a horse 

 

Morgan Horses, American Saddlebreds, Hackneys, National Show Horses, Arabian Horses, Friesians, Shetlands, and Roadster Horses are judged at the trot in competition. Any unsoundness, or soreness, produces an uneven and unattractive trotting gait that would be severely penalized in competition, which is why the aforementioned breeds have never been sored, or been subject to APHIS inspections under the HPA regulations. In these breeds, it is simply not the case that “soreness improves the performance”; it does the exact opposite. 

This fact was eloquently illustrated by Smith Lilly, professional horse trainer and Vice President of the United Professional Horseman’s Association (UPHA) at a public hearing on the proposed rule: 

On the other hand, American Saddlebreds, Arabians, Morgans, Hackneys, Friesians, Shetlands, Dutch Harness Horses, Roadsters and National Show Horses, the breeds represented by UPHA, all trot in the show ring. The trot is a two-beat diagonal gait in which each front leg and the diagonal hind leg strike the ground together and at an equal interval from the corresponding pair of legs. Any unsoundness, or soreness, produces an uneven and unattractive way of going at the trot that would be severely penalized in the show ring, which is why none of the aforementioned breeds have ever been found to have been sored, or subject to inspections under the HPA. Not only is there no incentive to sore a trotting horse, there is a strong disincentive to do so. 

There can be no doubt that the trainers of these breeds have an overwhelming incentive to prevent soring. 

The HPA was enacted to prevent soring which “improves the performance” of a horse causing it to “compete unfairly with horses which are not sore.” 15 U.S.C. § 1822. This situation only occurs in a few breeds of horses that are not shown at the trot, namely: the Tennessee Walking Horse, Racking Horse and Spotted Saddle Horse. Soring clearly does not improve the 

performance of a trotting breed. The term “related breed” should be removed as there is no rational basis for including trotting breeds under the proposed rule. 


B. AMHA, as well as all breeds represented by the UPHA, are also affiliated with the USEF, the national governing body for equestrian sport, and therefore, show under its rules. The proposed rules would substantially increase costs without any increase to the welfare of the horses. 

 

The USEF, the national governing body for equestrian sport, has enacted detailed rules for the showing of horses in the more than 2,500 events it sanctions. The USEF oversees events for 11 breeds and 18 disciplines of horses and strictly enforces prohibitions of any type of equine abuse, including but not limited to soring. With $18,000,000 dedicated annually to enforcement of its Welfare and Drug and Medication rules, the USEF and the breeds it represents have proven to be leaders in self-regulation. 

Notable for this rulemaking, the Tennessee Walking Horse, Racking Horse, and Spotted Saddle Horse breeds withdrew from the USEF over a generation ago, and do not operate under its governance, hence the need for the HPA. The USEF rules specifically recognize this, stating multiple times that the “Tennessee Walking Horse, Racking Horse, or Spotted Saddle Horse” are not breeds recognized by the USEF. GR839(4)(n). Not being recognized by the USEF means these breeds are not bound by the strict Welfare and Drug and Medication rules with which all trotting breeds must comply. 

The proposed rule’s use of the expansive terms “related breeds” and “related breeds of horses that perform with an accentuated gait that raises concerns about soring” results in the rule potentially being applicable to breeds competing in USEF-sanctioned events. The expansion of the HPA regulations would result in a duplication of efforts and an increase in costs with no corresponding increase to the welfare of the horses. Hundreds of small community shows, many of which are staffed by unpaid volunteers, would be heavily impacted by the burdensome requirements in the proposed rules. 

C. Clarification of the proposed rule to address breeds where soring improves performance prevents the waste of scarce agency resources 

 

Congress has provided an appropriation of only $500,000 per year for enforcement of the HPA. APHIS should not squander its limited taxpayer funds by enacting broad, sweeping regulations that cause significant economic impacts on a segment of the industry where there is not only no history of any violations of the HPA, but an actual incentive to ensure no soreness exists. The report by the USDA’s Office of Inspector General, which is the impetus for this rulemaking, noted that APHIS’ budget was only sufficient to send inspectors to 30 horse shows. (OIG Report) Inspecting horse shows of “related breeds” that already operate under the auspices of USEF governance and which do not sore horses would be a waste of APHIS’ limited resources. 

Rather, APHIS should stick to its mission and focus its efforts on strictly enforcing the HPA in the three breeds where soring exists and where there is an incentive to sore horses to unfairly improve their performance. Maintaining this focus is undeniably the clear, stated intent of Congress and is consistent with the plain language of the HPA. AMHA urges APHIS to remove the ambiguous term “related breed” and target its proposed rule on the few breeds where the cruel practice of soring is actually occurring. 

III. The prohibition of all substances (including, but not limited to, topical antibiotic cream, liniment and fly spray) is overly broad, lacking in common sense and without scientific justification, as some substances are therapeutic in nature and have a legitimate, beneficial use. 

 

The proposed rule repeats history by creating a broad prohibition on substances that is widely applicable to horse shows that have no history of soring. In addressing concerns raised regarding a similar provision that appeared in the 1979 proposed rule, the USDA specifically stated when it enacted the final rule: 

Other comments indicated that the proposed restriction places an unnecessary burden on most horse shows and exhibitions by prohibiting the use of fly sprays, grooming aides, etc., on the vast majority of horses. It was further pointed out that since soring is only prevalent in one or two breeds of horses, placing such restrictions upon all horses was unwise and unfair. The Department agrees that this comment and objection has some validity. It has been the Department’s experience over the past 7 or 8 years that the types of horses usually subjected to soring practices has been the Tennessee Walking Horses and, to a lesser extent, racking horses. The Department has therefore changed paragraph (c), “Substances”, to read: “All substances are prohibited on the extremities above the hoof, of any Tennessee Walking Horse or racking horse, while being shown, * * *” and is thus limiting the prohibition concerning the use of substances to Tennessee Walking Horses and racking horses. 

44 FR 25175 (emphasis added)(attached as Exhibit 2). 

The USDA’s statement and the industry’s concerns in 1979 are as relevant now as they were then. Soring has remained limited to specific breeds of horses and the nearly 40 years of additional experience APHIS has gained since this time only reinforces the determination that there is no benefit to prohibiting these substances in breeds where the practice of soring does not occur. The expansion of the prohibition in the proposed rule to the undefined “related breeds” would not only have a substantial negative economic impact on trotting horse industry, it would actually harm the very horses APHIS is trying to protect. 

Substances such as topical antibiotic cream, liniment and fly spray have no inherent connection to the practice of soring. These substances were all developed to improve the welfare of horses by lessening pain, improving the treatment of disease and eliminating irritants. Indeed, the primary purpose of these substances is to help, not harm, horses. Applying the prohibition on these substances to trotting breeds is arbitrary and capricious and wholly unsupported by any scientific or practical evidence. While the proposed rule notes that there has been misuse of substances in some breeds, this misuse is limited to “HPA-covered events featuring Tennessee Walking Horses, Racking Horses, or related breeds at which horse industry DQPs conducted inspections.” The use of substances in trotting breeds is strictly regulated by USEF’s Drug and Medication rules and there is no rational basis or scientific justification to expand the prohibition to trotting breeds. 

The blanket prohibition on substances in the proposed rule also conflicts with the very definition of “sore” in the HPA. The HPA defines “sore” to specifically exempt the “application, infliction, injection, use, or practice in connection with the therapeutic treatment of a horse by or under the supervision of a person licensed to practice veterinary medicine in the State in which such treatment was given.” 15 U.S.C. § 1821(3) (emphasis added). The use of topical antibiotic cream, liniment and fly spray in trotting horses is for therapeutic purposes and the proposed rule’s failure to exempt the use of substances for these purposes is in direct conflict with the plain language of the HPA. 

IV. The prohibition on pads, wedges and hoof bands should be removed as the use of pads, wedges, and hoof bands in many breeds and disciplines is both justified and warranted 

 

AMHA is particularly concerned about the prohibition of “any pad, wedge, or hoof band” in the proposed rule. Section 11.2(a)(2). Key to the concern is the fact that the prohibition applies not only to Tennessee Walking Horses and Racking Horses, but also any “related breed that performs with an accentuated gait that raises concerns about soring.” 

AMHA recognizes that shoeing devices such as stacks have been misused by some in the Tennessee Walking Horse, Racking Horse and Spotted Saddle Horse industries to sore horses. However, that does not justify banning the use of pads by trotting horse breeds. Pads used by trotting breeds play an important therapeutic role in preventing lameness, as they absorb the concussive forces produced when the horse’s hoof strikes the ground. Pads are particularly important when a horse is ridden on hard ground. The role of pads on such horses is akin to shoes on a human; a professional basketball player would not be expected to play barefoot. Certain pads are also specifically used by veterinarians and horse trainers to prevent or treat pedal osteitis, thin soles, bruising and a variety of other conditions and diseases. Other forms of therapeutic treatment to prevent or relieve pain, such as the use of packing materials necessary to prevent materials coming between the pad and the hoof or roller motion shoes, may also fall within this broad ban.


A recent article in September 2016 edition of The Horse Magazine titled “Hoof Pads: What are They Good For?” provides detailed information about the proper use of pads that APHIS should consider. The article notes that the various types of pads, such as full wedge pads, bar wedge pads, frog support pads, flat pads, pour-in pads, rim pads and full-support pads serve different therapeutic purposes. “Wedge pads, for example, can be used to artificially raise the hoof angle when conformation or injury needs assistance.” Such pads are helpful in cases where the hoof angle is low relative to the pastern angle. 

Based on the explanatory text of the proposed rule, APHIS appears to be under the impression that the proposed ban of pads, wedges and hoof bands “would not have any impact” on the majority of horse shows. However, this impression seems to be based on the horse shows which APHIS currently inspects, those containing Tennessee Walking and Racking Horses. The Agency’s impression is simply wrong about the impact on horse shows where trotting breeds compete. 

Banning pads, wedges and hoof bands in trotting breeds, which are used for therapeutic treatment rather than soring, would significantly harm the welfare of horses. Eliminating these tools for the trotting breeds would create an epidemic of lameness and fundamentally alter the way of going of performance horses throughout the show horse world. Trotting breeds would likely suffer from significantly increased risk of injury and ailments to their feet, knees, tendons and hips that could have been prevented. In addition to harming the very horses APHIS is trying to help, the proposed rule as drafted would result in substantial irreparable damage to a multi-billion dollar industry. 

AMHA believes that the prohibition of “pads, wedges and hoof bans” must be removed from the proposed rule and the term “related breed that performs with an accentuated gait that raises concerns about soring” must be removed or clearly defined to exclude trotting breeds.

 

V. Without the requested clarification, the proposed rule will have a significant economic impact on breeds that have no history of soring 

 

There are estimated to be 2.7 million show horses in the U.S., with the owners ranging from small rural farms to large commercial breeding farms.5 The show horse industry alone creates more than 380,000 jobs and contributes an estimated $28.8 billion annually to the national economy. Show horse sales total $519 million per year and show horse owners spend more than $573 million annually on medicine, shoeing and veterinary services. Any impacts to this industry would be significant. 


The trotting horse industry has no history of soring horses, yet would be significantly impacted if the proposed rule is not clarified. Under the proposed rule, the industry would be required to expend significant resources to comply with rules that are largely duplicative of those enforced by the USEF. Prohibiting the use of pads and hoof bands in trotting breeds would unalterably change the performance of these breeds and drastically devalue their worth, causing irreparable harm to the industry.

Finally, and most importantly, the ban on substances such as topical antibiotic cream, liniment and fly spray and devices such as pads, wedges and hoof bands would result in increased risk of illness and injury to thousands of horses. The economic results would be devastating and would cause irreparable damage to the trotting horse industry. 

USDA’s conclusory regulatory impact analysis looks at the impacts on only a sliver of the industry and fails to account for impacts on any breeds other than walking and racking horses. This results in a failure to properly weigh the costs and benefits of the proposed rule. When the full ramifications are considered, there is no question that the proposed rule is “economically significant.” Under OMB rules, economically significant rules require a more detailed cost-benefit analysis to be performed. The failure to perform such analysis not only results in an uninformed, arbitrary and capricious rule, it leaves the agency open to reversal by the courts. 

A. The regulatory impact analysis is factually and legally insufficient, as it fails to account for impacts on any breeds other than walking and racking horses 

 

Executive Orders 13563 and 12866 require agencies to provide to the public and OMB a careful and transparent analysis of the anticipated consequences of economically significant regulatory actions. The purpose of the analysis “is to inform agency decisions in advance of regulatory actions and to ensure that regulatory choices are made after appropriate consideration of the likely consequences.”6 The important goals of a regulatory analysis are to establish whether federal regulation is necessary and justified and clarify how to design regulations in the most efficient, least burdensome, and most cost-effective manner. The regulatory impact analysis prepared for this rule simply does not comply with OMB requirements, as it fails to account for impacts on any breeds other than walking and racking horses. 


As noted previously, therapeutic substances and pads play an important role in preventing and treating lameness in jumping and trotting horses. Sickness or injury, such as pedal osteitis, can result in the total inability of a horse to continue to compete and loss of all value at sale. Considering that a single show horse can be valued at hundreds of thousands of dollars, the impact of the proposed rule would be astronomical. 

Further, it is likely that thousands of horse owners would decide not to attend shows where their horses face an increased risk of illness or injury. Any decrease in owner participation in horse shows would have serious financial consequences to show venues and all the ancillary businesses that provide the services necessary to make a horse show a success. Those horses continuing to compete under the proposed rule would see increased lameness and injury occurring during shows, which would have negative consequences on the show horse industry. 

The increased costs of injuries and illnesses, much less decreased owner participation, have not been considered by APHIS. The regulatory analysis is wholly insufficient and fails to recognize these costs. 

B. The regulatory impact analysis fails to properly recognize that the proposed rule is “economically significant” 

 

A regulatory action is considered “economically significant” under Executive Order 12866 § 3(f)(1) if it is likely to result in a rule that may have: “an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” When the full effects of the proposed rule are taken into account, it is clear the proposed rule meets this definition. Even a one-half of one percent decrease to the show horse industry would result in the proposed rule easily meeting the definition. 

AMHA urges APHIS to take into consideration all the benefits and costs of the proposed rule, as it is required to do, to prevent unnecessary challenges to its process of promulgating the proposed rule. 

 

Conclusion 

AMHA believes strongly that the welfare of horses is paramount and supports APHIS’ intention to eliminate soring the Tennessee Walking Horse, Racking Horse and Spotted Saddle Horse industries. However, AMHA strongly urges APHIS to stay on mission. As currently drafted, the proposed rule would expand the regulations to trotting breeds that have no history of soring, and which have an incentive to prevent soring. Expanding the proposed rule to the undefined class of “related breeds” is contrary to Congressional intent and the plain language of the HPA, would waste scarce agency resources and is vulnerable to legal challenges that would unnecessarily delay implementation of the rule. 

AMHA and its members therefore recommend removal of the undefined and ambiguous term “related breeds” and clarification that the prohibition on substances (including, but not limited to, topical antibiotic cream, liniment, and fly spray) and pads, wedges and hoof bands will only apply to breeds with a history of soring, such as the Tennessee Walking Horse, Racking Horse and Spotted Saddle Horse. 

We appreciate your consideration of our views and recommendations. 

Sincerely, 

Jeff Gove, AMHA President 

Carrie Mortensen, AMHA Executive Director 



Am. Horse Prot. Ass'n, Inc. v. Yeutter, 917 F.2d 594, 595 (D.C. Cir. 1990). 
Contender Farms, L.L.P. v. U.S. Dep't of Agric., 779 F.3d 258, 269 (5th Cir. 2015) (citing City of Arlington, 133 S.Ct. at 1874). 
These terms, while different, appear to be used interchangeably in the proposed rule and appear 10 times in various sections. 
Similar to the prohibition on substances, the ban on pads, wedges and hoof bands in the proposed rule also conflicts with the definition of “sore” in the HPA. The “use” of pads, wedges and hoof bands is not simply not within the authority of APHIS to ban when they are used “in connection with the therapeutic treatment of a horse.” 15 U.S.C. § 1821(3). 
The Economic Impact of the Horse Industry on the United States, American Horse Council Foundation, issued July 2005. All statistics are as of 2005 and have not been adjusted for inflation. 
Regulatory Impact Analysis: A Primer, Office of Information and Regulatory Affairs, OMB, available at: https://www.whitehouse.gov/sites/default/files/omb/inforeg/regpol/circular-a-4_regulatory-impact-analysis-a-primer.pdf. 

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