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ASHA Responds to USDA Proposed Regulations



Our industry leaders at ASHA have been working diligently over the last two months to draft comments to the USDA in response to the proposed new rules to enforce the Horse Protection Act. The comments are as follows:

Comments of American Saddlebred Horse Association on the USDA Proposed Revisions to Rules under the Horse Protection Act

 

Proposed Rule Changes to the HPA

Docket No. APHIS 2011-0009

RIN 0579-AE19

Re: Horse Protection; Licensing of Designated Qualified Persons and Other Amendments

 

 

THE AMERICAN SADDLEBRED HORSE ASSOCIATION

4083 Iron Works Parkway, Lexington, KY 40511

 

The American Saddlebred Horse Association (ASHA) is a membership organization, which supports all of the activities that make Saddlebred ownership pleasurable and exciting, while working to stimulate and promote interest in the breed. We have approximately 6,700 members, residing in nearly all states, Canada, Germany and South Africa. Originally established in 1891, the ASHA traces its history to one of the oldest breed organizations in the United States and represents a breed of truly American origin. Saddlebred horses are a versatile breed used for showing, trail riding, dressage, and as hunters and jumpers. In the showring they compete in harness and under saddle in both English and Western tack. They are one of a number of breeds that, in addition to other gaits, are required to perform at a trot in competitions.

 

Introduction

The American Saddlebred Horse Association (ASHA) appreciates the opportunity to comment on the proposed revisions to the Horse Protection Act (HPA). We applaud the efforts of the USDA to eradicate the practices prohibited under the HPA and believe that more can and should be done. However, as more fully explained below, we are concerned that the proposed rule, as written, is deeply flawed and that revisions to the proposed rule are necessary in order to meet the stated goals of the HPA. These flaws include vague language that creates confusion and uncertainty. This language could be interpreted to have dramatic negative impacts on other equine industries that have no history of soring. If given this interpretation certain new provisions would be arbitrary and capricious, change the focus of the USDA away from the  industries where the abuse persists, attempt an expansion of the authority of the USDA beyond that authorized under the HPA, and violate requirements of rulemaking procedure by failing to properly assess the cost impacts of the revisions.  

If changes are not made to the proposed rules there will be substantial damage to the horses and horse industries where soring has never been demonstrated to occur, which are already under the oversight of through the USEF, and a redirection of resources away from the industry where the violations are known to occur.[1] We ask that the USDA make changes to the proposed rule consistent with the comments herein.

 

PURPOSE OF THE ACT

 

The HPA was adopted in 1970 and was subsequently amended in 1976. The intent of the action was clearly set forth in Congressional findings:

The Congress finds and declares that—

(1)

the soring of horses is cruel and inhumane;

(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;

(3)

the movement, showing, exhibition, or sale of sore horses in intrastate commerce adversely affects and burdens interstate and foreign commerce;

(4)

all horses which are subject to regulation under this chapter are either in interstate or foreign commerce or substantially affect such commerce; and

(5)

regulation under this chapter by the Secretary is appropriate to prevent and eliminate burdens upon commerce and to effectively regulate commerce.[emphasis added].

 

The intent of Congress was to stop the practice of soring horses. The Congress recognized that there was an incentive in certain breeds to sore horses in order to increase their competiveness with other horses they were competing against.[2] The HPA was passed based upon clear evidence that in Tennessee Walking Horse competitions a horse that was sored would tend to exhibit a form of gait that would lead to a higher placement than horses not subjected to soring. The HPA rightly prohibits the soring of any horse. The USDA, which was tasked with the duty to prevent and eliminate the practice, and consistent with the evidence, focused much of its attention in the rules on the Walking and Racking Horse industry in past rulemakings.

A perusal of the existing rule reflects this targeted approach. It shows that the resources for inspections and primary requirements on show management are placed where the soring of Walking and Racking horses compete or might be auctioned.   

 

The reason for this targeted approach is clear. It had long been known that soring practices could produce an advantage in competitions because of the desired look in the way a Walking horse traveled in the running walk. That "desired look" involves having Walking horses travel with exaggerated over-stride with the rear legs and increased motion in the front legs. Soring can help produce this image[3] by motivating a horse to shift weight to the hindquarters. The result is a look that is considered desirable in competitions for certain Walking horse classes. This is exactly what Congress was referring to when it stated: "...where such soreness improves the performance of such horse...".

 

If one is to prevent soring, it is important to understand the nature of the reason that some horses in the Walking and Racking horse industries are sored. Smith Lilly in his testimony gave a good explanation of why such abuse might be incentivized in those competitions, while it would be detrimental in other breeds:

 

"To get to the root of the issue, one must understand that these horses compete at a four-beat gait, with each hoof striking the ground independently, thus the term “gaited horses.” When these horses are sored in their front limbs, they will bear more weight on their hind legs to relieve the pain, which does in fact accentuate their gait, which of course is why people do it. Note that these three breeds are the only breeds to show with breast collars attached to their saddles. They must do this because these horses lower their hindquarters to such an extent that the saddle would slide backwards on the horse absent a breast collar to hold it in place. Soring accentuates this lowering of the hindquarters. "

 

The Walking and Racking horse competitions are the only ones where shifting weight so dramatically to the hindquarters is desired in the gaits performed, without negatively impacting other gaits required. This is one of the principle reasons soring is a known problem in this industry and not in others. This is not considered desirable in other breed competitions, a fact that does not appear to be recognized in the current proposal.

The ASHA is concerned that the USDA is expanding the significant changes to the rules to breeds that have no history of soring, both diluting scare resources to prevent soring and burdening other horse industries without cause.  Such an expansion would also be inconsistent with the PAST Act, which focuses on Tennessee Walking Horses, Racking Horses and Spotted Saddle Horses-breeds with competitions that have a history of soring.

It is critical to understand the difference in the impact of soring in other breeds. Unlike competitions for non-trotting breeds, no such incentive to sore exists in competitions of the American Saddlebred, Morgan, Arabian, Hackney and other horse industries.[4] That is because these breeds are required to trot in competition. In the last in person public hearing this point was illustrated by Smith Lilly, professional horse trainer and Vice President of the United Professional Horsemen’s Association (UPHA). He states:

 

"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."

 

This fact was reiterated by Donna Pettry-Smith who judges Saddlebred horses in competitions. She explains the fact that soring horses judged on the trot would put such horses at a competitive disadvantage:

" It is my understanding that the main objective of the HPA is to eliminate soring in the breeds that gain a competitive advantage by being sore. In these instances, the HPA concludes that sored horses “compete unfairly with horses that are not sore”, giving the sore horse a winning advantage. In American Saddlebred competitions, soreness will likely cause the entry to be last, not place, or risk judicial disqualification in any given class. The reason for this is because the American Saddlebred is a trotting breed of horse. In every class, in every division, our horses are judged at a trot. Even in the 5-Gaited division where our horses are judged at the rack, they are also judged at the trot. A sore horse simply cannot perform at the trot, is not competitive, and will not place well in American Saddlebred competition."[5]

 

Dr. Hunter Ortis, of Equine Medical, in Columbia, Missouri is a well-known equine veterinarian who has treated thousands of horses of many breed types. Dr. Ortis articulates both the lack of soring in trotting breeds and the harm that would be caused by the application of certain provisions of the rules to these trotting breeds in the changes proposed. He states:

 

" I support the USDA’s efforts to end the practice of Soring of horses. However, I cannot support the current proposed rule issued by the USDA and APHIS due to its broad, sweeping language and lack of specificity.  The proposed rule is too vague and open to interpretation. The inclusion of ‘Related Breeds’ and ‘Accentuated Gait’ in the wording highlights the vagueness and lack of specificity in the proposed rule.  Non-specific wording such as this leads toward potentially imposing these regulations on breeds that have no history of Soring. I personally have never witnessed Soring in these breeds during the thousands of examinations I have performed during my practice of Veterinary Medicine. I request the proposed rule be rewritten to delete ‘and related breeds’. The vague wording of ‘related breeds’ and ‘horses that move with an accentuated gait’ would allow potential overreach into the American Saddlebreds, Hackneys, Morgans, Arabians and possibly other breeds an disciplines, by not allowing the use of Pads and Wedges.  Pads and Wedges are used by Veterinarians and horse professionals to promote soundness, support the sole and internal structures of the foot, and alleviate/prevent pain in these naturally high-stepping breeds that move with a concussive nature. The restriction of the therapeutic use of wedges and pads would cause many sound horses to experience pain, thereby causing lameness in breeds that have no history of Soring.  It is unfortunate that the Tennessee Walking horse industry has reportedly used Pads to hide devices that cause or inflict pain to the horse, and this should be strictly regulated within the Tennessee Walking and Racking horse breeds."

 

This testimony, which is uncontroverted by any credible information in the record, makes clear that soring does not improve the performance of horses such as the Saddlebred, Morgan, Hackney, Friesian, and other trotting horse breeds. This fact has not changed in the time since the adoption of the HPA.

Because  the effect of soring on the gait of a horse that is required to trot as a part of its competition does not enhance but rather decreases its ability to compete there is a competitive deterrent to abuse such a horse in this fashion. Imposing substantial new rules on show horses that are required to trot in their competitions without evidence of such soring practices being used, and where the performance of the horse would be adversely impacted by such practice, is not warranted and is contrary to the stated intent of Congress. The changes proposed, if applied to these industries, would have dramatic negative consequences.  In light of this and the successful oversight of these industries that already exists, such change places an unnecessary and high burden on these trotting breeds.

 

RELATED BREEDS

 

Much of the concern expressed by the Saddlebred, Morgan, and Hackney industries is due to the vagueness in the applicability of the strictest parts of the rule to Walking and Racking horses and "... related breeds." This language and other vague language, such as “accentuated gait” or “animated gait,” discussed later in these comments, may be interpreted to create a very large expansion of the applicability of the new special provisions of the HPA rules beyond the Walking and Racking Horse industry. If the intent of the USDA is to target the Tennessee Walking Horse and Racking Horse performance shows[6] and to protect against these industries creating similar performance shows under other names, then an effort must be made to clarify that other performance horse breed shows are not unintentionally caught in this definition, when these competitions have no incentive to and are not known for soring.

For those unfamiliar with the history of our American horses the problem with the use of the term "related breeds" may not be clear. Indeed, many horse breeds developed in America including the American Quarter Horse, American Thoroughbred, American Standardbred, American Saddlebred, Morgan, Tennessee Walking Horse, Racking Horse, Missouri Foxtrotter are arguably related- having descended in part from our colonial horses and English Thoroughbreds.

The current rules of the USDA make a clear distinction between shows that have classes for Walking and Racking horses and those that do not. Section 11.20 currently states in part:

 

(a) The management of any horse show, horse exhibition, or horse sale or auction which does not appoint and retain a DQP shall be responsible for identifying all horses that are sore or otherwise in violation of the Act or regulations, and shall disqualify or disallow any horses which are sore or otherwise in violation of the Act or regulations from participating or competing in any horse show, horse exhibition, horse sale, or horse auction. Horses entered for sale or auction at a horse sale or horse auction must be identified as sore or otherwise in violation of the Act or regulations prior to the sale or auction and prohibited from entering the sale or auction ring. Sore horses or horses otherwise in violation of the Act or regulations that have been entered in a horse show or horse exhibition for the purpose of show or exhibition must be identified and excused prior to the show or exhibition. Any horses found to be sore or otherwise in violation of the Act or regulations during actual participation in the show or exhibition, must be removed from further participation prior to the tieing of the class or the completion of the exhibition. All horses tied first in each Tennessee Walking Horse or racking horse class or event at any horse show or horse exhibition shall be inspected after being shown or exhibited to determine if such horses are sore or otherwise in violation of the Act or regulations. (Emphasis added).

 

The current rules make a distinction throughout between the oversight of shows that have classes for Walking and Racking horses and those that do not. The proposed changes to the rule create uncertainty as to the requirements of inspection and oversight of the horse classes and shows by adding related breeds[7] to the list. Several horse breeds, and many horse shows and classes that currently are not required to have DQPs or provide inspections of horses, may now be subject to significant new requirements and rules because of the use of vague terms such as "related breeds" and "accentuated gait" or "animated gait".

 

To avoid the uncertainty and unintended consequences of the rule as currently drafted, we request that, as in the current rule, the revisions address the industry where there has been a history of violating the provisions of the HPA. The term "related breeds" should be deleted. In its place the rule should instead specify that the enhanced provisions of the rule apple to the Walking, Racking and Spotted Saddle Horse industries. This is the approach that is being taken in the PAST Act and should be followed in this rulemaking.

 

 

Using the approach taken in the PAST Act would focus the resources of the USDA dedicated to eradicating the practice of soring in the industry where there is a history of violations. The proposed changes if applied to the trotting breeds would weaken the effort by diluting the resources of the USDA and spreading limited funds across shows that do not offer Walking and Racking horse classes. At the same time, the expansion of the substantial changes proposed would have a dramatically negative impact on the horse industries that have never shown a propensity to sore their horses..

 

The USDA has not demonstrated a need nor properly estimated the cost of subjecting the Saddlebred, Morgan, Hackney and other horse industries that have no history of soring to the new requirements in the proposed rule. We ask for clarification in the proposed rule that this is not the intent of the USDA.

 

   

 

 

 

 

ACCENTUATED OR ANIMATED GAIT

 

The language of the proposed rule changes appears to focus certain enforcement provisions on horses that exhibit an accentuated gait.[8] There is no definition of this term in the rules. The word "accentuate" is defined  in Webster's Online Dictionary as: "accent, emphasize; also :  intensify". While the meaning of this as applied to the rule making may be understood by the author, attempting to differentiate horses that have an accentuated gait from those that do not will vary from one person to another. The term is too vague without further explanation. It is not clear if the determination is to be made by the inspector, the show management, or the USDA.[9]

Neither is there any evidence that an "accentuated gait" has anything to do with soring. If the term is meant to reference horses that have more motion then the author must not have an understanding of horses that have higher natural motion. This is something horses are born with and is not related to soring. The same is true of the use of the term "animated gait", also found in the proposed rule. Once again this term creates no standard at all, for the interpretation of it is in the eye of the beholder. The use of these terms will create confusion for those attempting to comply with and enforce the rule.  Using vague terms subject to the interpretation of different show horse managers and officials interacting with the provisions of the rule does not further the HPA. Instead it will create substantial uncertainties and hardships on the industry.

Adding this regulatory burden to trotting breeds is not justified. Soring is detrimental to the performance of horses that compete in classes where high action is seen as favorable , except in the Walking and Racking Horse industries. Yet, this rule as written may be applicable to many other horse breeds.

The use of the terms "accentuated gait" and "animated gait" and provisions that directly relate to them should be eliminated from the rule. Their use, coupled with the term related breeds, leaves this rule without any objective guidance on the applicability of this rule to horses outside of the Walking and Racking Horse competitions. The result leaves many horse owners, businesses, and horse shows in a state of uncertainty that is harmful to the industry and does not serve the purpose of the HPA.  In fact, it could actually harm the effort to prevent soring by diluting the resources of the USDA to efforts that lessen its ability to prevent the practice where it is occurring. We request that the terms be deleted from the proposed rule.[10]

 

 

 

THE RULES REGARDING SHOEING PRACTICES WOULD CAUSE HARM TO HORSES WHO NEED CORRECTIVE SHOEING TO MAINTAIN SOUNDNESS AND DO NOT MEET THE DEFINITION OF SORING UNDER THE HPA.

 

If intended to be applied to the trotting breeds, the proposed language in the rulemaking to the shoeing practices are not authorized by the HPA and are not supported by the record.[11] The changes would dramatically and negatively impact these industries and cause harm to the long-term health and soundness of many show horses.

The USDA has received comments from professional farriers, trainers, and veterinarians explaining how professional shoeing benefits the horse as he travels. Smith Lilly testified to this in his public comments:

 

 "...[p]ads and wedges are used by all of the aforementioned breeds to help maintain soundness in many horses. I am certain that veterinarians and farriers have testified to the benefits of pads and wedges in keeping horses sound in sufficient numbers and levels of expertise as to remove any reasonable doubt from the issue of the beneficial nature of pads and wedges in the vast majority applications. But, from a professional horseman’s perspective, I want to state unequivocally that for many horses, pads and wedges are essential therapeutic devices to maintain soundness. So, as currently written, the proposed APHIS rule could be construed by this, or subsequent administrations, to apply to any and all horses competing at horse shows, and could adversely impact the soundness of many of them."

 

 

 

 

The elimination of the use of pads, bands and other shoeing methods that have beneficial uses would harm the trotting horse breeds . Pads cushion a horse’s footfall. Bands are employed for the purpose of helping to maintain the shoe on the horses hoof because some horses have hooves that are more brittle than others and will not hold a shoe well with appropriate nails alone. There is no evidence that the use of these shoeing methods violate or are used to violate the HPA in trotting breeds. The rule should not ban beneficial shoeing techniques that are not causing the soring of the horse. When there has been no evidence of or benefit from soring in the trotting breeds applying such a  this provision is not justifiable under the HPA.

Note that there are provisions in the current rule that prohibit the use of shoeing techniques that would result in soring. The current rule ensures that bands are not placed so high so as to be near the coronet. This restriction places the emphasis on the possibility that a band might be used to create pain rather than serve a useful and humane purpose.

Professional shoeing is needed to help horses in much the same way that different shoes help human athletes compete. Some horses do not travel perfectly and can "wing" or "interfere" without special shoeing. A professional farrier can address many of these faults with corrective shoeing. All of these tools are used to help a horse maintain its soundness over the lifetime of the animal. However, the proposed rule could remove some of these tools for the trotting breeds if adopted as written. Without these tools, many of these horses would have shorter active careers and some would have no career at all. A horse that is not sound will not do well in competitions of the trotting breeds. Without access to the professional shoeing practices, many of the horses showing today will lose value or become useless for the show ring. The rules proposed would cause harm rather than prevent it when applied to the trotting breeds.

 

Randy Luikart, a professional farrier who has previously been instrumental in helping the USDA gain insight into how to prevent soring, raises serious concerns about the current draft. In his comments he states:

 

  "USDA’s additional proposed amendments to the Horse Protection Act pertaining to shoe weight limits on aged horses at shows, auctions and exhibitions is interesting. Ideological amendment proposals such as this are not based on science and are completely impractical in benefiting the welfare of the horse. ...

 

As a Past President of the American Farriers Association wording that declares methods used to mediate lameness and maintain soundness as intentional soring is both inaccurate and offensive. The skills and knowledge required to shoe a horse safely and correctly are not appreciated by those that cannot. Abandoning centuries of standards and more current scientifically proven techniques that provide welfare to the horse is certainly contraindicated."

Randy goes on to encourage the USDA to write rules that are consistent with good farrier practice and consult with professional farriers in designing rules that will accomplish the goal of attacking soring without harming horses that the horses the HPA was intended to protect.

"Frustration that the walking horse industry is continuing to elude the intent of the act is felt in all aspects of the horse industry. I can sympathize with that and was active in the past to formulate rules that would have proven beneficial to that enforcement. Outside political influence was employed by the walking horse industry to remove those proposed rules. The average horse’s performance requirements range from barefoot in the pasture to heavy pulling horses. Every other discipline falls between those two extremes. One kind of shoe is not practical. The Budweiser Clydesdales normally wear shoes that are over 4 pounds and are holding up a ton of equine mass.

Knowledgeable farrier input is mandatory for the USDA to have technically correct, practical and fair proposals ensuring the best possible care and protection for the athletic horse is maintained. It is not in the performing horses’ best interest and certainly against the purpose of the act to ignore good science while formulating these proposals."

 

 

The use of pads and special shoeing can have a positive competitive impact. But such shoeing is not indicative of soring. Neither is such shoeing prohibited under the HPA[12] when there is no evidence that it is used to sore horses that are required to trot. As such, it is not justifiable for USDA to place substantial new restrictions in shoeing practices upon the trotting breeds.

It may be true that banning certain shoeing practices would make it more difficult for the soring to be hidden by the Walking Horse, Racking Horse and Spotted Saddle Horse industries. However, applying these prohibitions to trotting breeds would create a substantial burden on an industry that is not involved in this practice As such the broad prohibitions of shoeing methods contained in the proposed rule, if intended to be applicable to the trotting breeds, are beyond the scope of the HPA, arbitrary and capricious, and, as further stated below, fail to meet the requirements of the rulemaking process..

 

PROHIBITIONS OF USING "SUBSTANCES"

The proposed rule changes would ban all substances from being placed on horse’s legs at a competition.[13] The prohibition of the use of all substances on the legs of a horse at a competition prevents the application of medicines that are beneficial to the horse. These could include liniments that have been included in the traditional cooling out of horses for generations and fly and mosquito sprays that are important to equine well being . The proposed change is inconsistent with the language of the HPA, which specifically targets efforts to sore through agents that irritate or burn the horse. We agree that such substances should not be permitted. However, the proposed language change removes the requirement of harm from the rule on substances for certain horses, apparently including many trotting breeds, and is beyond the scope of the HPA.

 

Dr. Hunter Ortis states his concern with these provisions in his comments:

 

"I would also like to see the restriction of ‘Lubricants’ to be better defined as to specifically which substances are deemed prohibitive. There are several therapeutic lotions/ creams/ ointments that are used on equine legs by veterinarians for therapeutic reasons that are USDA approved, yet are viscous in nature. Many of these products are prescribed by Veterinarians and are used to decrease swelling and or inflammation and benefit our equine athletes."

 

 It appears that the current language may even ban fly spray and other beneficial substances.  We urge the USDA to return the rule to its original language or modify the change to require the substances banned to cause soring so as to meet the requirements of the HPA in order to allow horse access to appropriate beneficial topical medicines that are not used to sore. 

 

 

 

 

 

 

 

THE ASSOCIATIONS OF HORSE BREEDS UNDER THE USEF HAVE THE OVERSIGHT TO ENSURE THAT HORSES ARE PROPERLY CARED FOR AND THAT ABUSIVE PRACTICES INCLUDING SORING HAVE APPROPRIATE CONSEQUENCES.

 

The United States Equestrian Federation (USEF) has for many years worked to ensure that horses under its umbrella are treated humanely. Founded in 1917, the USEF has worked closely with the USDA to monitor the treatment of equines in competitions it supervises. The USEF monitors and has the authority to suspend and fine individuals for violating their rules. The American Saddlebred, Hackney, Arabian, Friesian, Morgan, National Show Horse, Paso Fino, Shetland, Welsh/Cob pony, Connemara, and the Andalusian/Lusitano are all affiliated with the USEF. It should be noted that the Tennessee Walking Horse and Racking Horse breeds are not members.

The USEF has extensive requirements to ensure that horses are protected. For example note just a few of the rules for the American Saddlebred:

"1. The American Saddlebred has clean, rhythmic and fluid action which is straight and true. Winging, interfering, traveling wide behind, mixing of gaits and loss of form are undesirable.

   2. All horses must be serviceably sound. In In-Hand classes for sires and dams or prospective sires and dams, transmissible unsoundness only shall be considered. Horses must not show evidence of lameness, broken wind or complete loss of sight in both eyes."[14]

 

The rules of the USEF and the oversight provided by this organization, which along with its organizers, spend $18 million annually on their drugs, medication and welfare program, have proven to be effective in preventing the abuse of horses. There is no evidence in the record that the policing of the various horse industries under the USEF have been insufficient to justify additional oversight by the USDA.

We are not stating or inferring that any horse should be excused from the soring prohibitions of the HPA. All horse are subject to the provisions of this law. However, the USDA has not traditionally been funded at a level that would allow it to be present at every horse competition. Without a substantial increase in the amount budgeted for this effort, the result would be a weakened effort in the industry where supervision is needed.  A weakened effort to end soring practices should not be the result of the proposed rule

. The USEF provides another "set of eyes" for the protection of horses other than the Walking and Racking Horse industries. The oversight of the USEF is far more comprehensive than soring, including restrictions on use of certain drugs. The USDA has neither found nor been offered evidence that there is a need for additional oversight of the breeds affiliated with the USEF to prevent violations of the HPA.

 

 

INACCURATE AND INCOMPLETE ASSESSMENT OF COSTS

In the event that this rule requires enforcement at competitions, beyond those currently monitored by the USDA under the provisions of the current rule, substantial additional work must be done to appropriately assess the costs of the proposed changes. Clearly, no assessment has been performed of the required additional personnel necessary to cover the shows in which the Saddlebred, Morgan, Hackney, Arab, Friesian, Dutch Harness and other trotting breeds are exhibited. The number of these shows is far greater than the Walking and Racking Horse shows and the geographic area much wider than is the current focus of the USDA. This additional oversight would require substantial new federal funding. Neither has there been research into the impact of this rule on the trotting horse industry and its competitions and sales. This impact is substantial and should be studied.

There are additional costs not accounted for as well. Currently, shoeing practices that would be banned under the changes proposed are an important part of the way a horse performs in these new horse breed competitions. The disallowance of shoeing aids such as pads can and will lead to some of these horses being unable to compete or diminishing their ability to compete. In many cases this will result in a substantial loss in their value. The value of show horses in the Saddlebred and other breeds mentioned can be in the hundreds of thousands of dollars. Forcing The impact on the industry itself would be immediate. The number of horses in training would be reduced, the need for the unique expertise of the farriers who understand how to shoe these horses would be diminished, the need for the labor force who work in the stables and barns across the country would be lowered, and it is probable that the classes and shows would decline. The result would be of significant economic impact and this impact is required to be assessed.

 The USDA has not conducted such an investigation for industries other than the Walking and Racking horse industry as is required. Unless these rules are amended to clarify that they are not intended to impact other horse industries the USDA should halt its current rulemaking process and ensure that proper process is followed.  




INVESTIGATIONS AND FINDINGS OF THE GIS AND USDA DO NOT RELATE TO BREEDS REQUIRED TO TROT.

 

The Regulatory Impact Assessment of APHIS states clearly that its investigation into the costs of the revisions to the rules under the HPA focused only on the Walking Horse and Racking Horse industries. We are thus placed in a quandary as to whether this rule is intended to represent an expansion of the USDA oversight to many other breeds, or if it is intended to change the way the USDA regulates the Walking and Racking horse competitions.  If the USDA in this rulemaking intends only to change its current regulation of the Walking Horse and Racking Horse industries, then the prospective impact of these changes is much less of a concern to us.[15] As previously stated, the competitions with which we are concerned involve trotting breeds that have no  history of soring, would have a competitive disadvantage in competitions if sored, and represent breeds affiliated with the USEF. However, because the language in the rule as amended is vague and contains vague wording that this rule may have a substantial impact on these breeds, we feel it necessary to address the deficiencies of the investigation of the USDA and the findings of cost to the industry. 

The Regulatory Impact Assessment makes it clear that no investigation was done into the impact of the proposed rule on breeds beyond the Walking Horse and Racking Horse competitions. In the introduction the Assessment states:

" The proposed rule is not expected to adversely impact communities in which shows are held since walking and racking horse shows are expected to continue."[16]

 

In describing the impact examined in the report the Assessment states:

"We first present an overview of the proposed rule, followed by a description of entities that may be affected.  The latter includes general background on the U.S. Tennessee walking and racking horse industry.  We then address expected benefits and costs of the proposed rule, and expected effects for small entities."[17] 

The report describes the "Affected Entities" as the "Walking and Racking Horse Industry".[18] Nowhere is there any reference in the report to any other horse industry. The document then goes on to discuss the prizes and other incentives for winning. Again, only references to the findings in the Walking Horse industry are sited.[19]

The USDA also assessed the impact on the compensation of horse trainers. However, the findings of trainer salaries are based entirely on those of Walking Horse Trainers.[20] Indeed the focus of potential costs of the proposed rule changes are confined exclusively to the Walking and Racking Horse industry.[21] In the Proposed Rule Collection Package regarding inquiries as to the data collection and other record keeping that will be required the only feedback gathered was from the Walking Horse industry.[22] Thus it is clear that no assessment of costs to other horse industries have been conducted.

If the changes to the proposed rules are intended to address the industries beyond the Walking and Racking Horse industry, then there has been insufficient documentation of the costs in the Regulatory Impact Assessment. If the rule changes are intended to be confined to the Walking and Racking horse industry, then the rule needs to be clarified to remove the references to related breeds, accentuated gait, and animated gait contained in the proposed rule.  

 

 

 

CONCLUSION

 

The ASHA appreciates the efforts of the USDA to end the practice of soring. However, in order to effectively end the practice, the effort needs rifled attention where the problem is known to exist. The current draft contains significant proposed changes that are vague and confusing. Some of the changes potentially weaken the effort by moving resources away from the industries where the problem is known to exist. Instead, resources would be placed in other venues and breeds already subject to oversight, where no known soring issues have historically been found.

The ASHA urges the USDA to make changes to the proposed rule to remove references to "related breeds", "animated gait" and "accentuated gait". We encourage the USDA to focus its attention in a manner consistent with the pending PAST Act, targeting the problems that are known to exist. Finalization of the rule in its current form would, if expanded to the trotting breeds, result in devastating impacts to these other horse industries with no history of soring. The breeds such as the American Saddlebred, the Hackney, the Morgan, Friesian and others that are required to trot in competition have a disincentive to sore horses in competitions. In addition, these breeds are affiliated with the USEF, which is providing significant oversight of a broad array of rules designed to protect horses and exhibitors. There has been no demonstrated need to expand extensive regulatory oversight over these horse industries. Neither is there any evidence that the shoeing practices in these breeds are used to sore horses or to hide soring methods. There is evidence that the shoeing restrictions and topical bans that are not used to sore, if applied to these breeds, will have a detrimental effect on these horses and industries.

Finally, the USDA has not done an appropriate study of the effects of this rule outside of the Walking and Racking horse industry. If the intent of the USDA is to do so it must conduct such an inquiry before this rule is finalized. We stand ready to work to improve changes to the rule that focus on eliminating soring where it does occur. 

 

Respectfully Submitted,

Bob Funkhouser, ASHA President

  

 

 

 

 



[1] USDA states on its website that: "USDA's proposed changes would bring the Horse Protection Act regulations into alignment with existing standards established by the U.S. Equestrian Federation – the governing body for equestrian sports in America." Seehttps://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/horse-protection-amendments. If the change to the regulations are intended to match the current rules of the USEF so that the horse industries not affiliated with the USEF are covered by the same rules as those under the USEF, we support the intent of the rule changes. However, we are concerned that the language of the proposed changes does not match this intent.  

[2] Note that contrary to the statements in the justifications for the proposed changes Congress did not find that in every case:  "... horses shown or exhibited which are sore, horses shown or exhibited that are sore compete unfairly with horses that are not sore." Rather Congress clearly identified that it was trying to eliminate the practice of soring "...where such soreness improves the performance of such horse, compete unfairly with horses which are not sore." Congress clearly was aware that soring horses was a problem only in certain types of competitions. We urge the USDA to utilize the stated intention of Congress in writing changes to the HPA rules.

[3] Although it is not necessary to do so.

[4] In fact, as further discussed there is a strong disincentive to sore horses in these breeds because it would make them less competitive with non-sored animals.

[5] Testimony of Donna Pettry-Smith, USDA public hearing Maryland.

[6] When "Walking and Racking horse' is used in these comments it is intended to include Spotted Saddle Horses.

[7] The use of animated or accentuated gait cause a similar problem.

[8] The term is used frequently:

11.10

Management responsibilities; operation of horse shows, horse exhibitions, and horse sales and auctions.

(a) At horse shows, horse exhibitions, or horse sales or auctions involving Tennessee Walking Horses, Racking Horses, and related breeds that perform with an accentuated gait that raises concerns about soring, the management of any such horse show, exhibition, sale, or auction must:...

"...(b) Horse shows, horse exhibitions, and horse sales and auctions at which the management does not designate and appoint HPIs. (1) At horse shows, horse exhibitions, or horse sales or auctions involving Tennessee Walking Horses, Racking Horses, and related breeds that perform with an accentuated gait that raises concerns about soring, management shall..."

Another subsection:

"(1) Within 30 days following the conclusion of any horse show, horse exhibition, or horse sale or auction containing Tennessee Walking Horses, Racking Horses, or related breeds that perform with an accentuated gait that raises concerns about soring, the management of such show, exhibition, sale or auction shall..."

See also:

11.12

Inspection procedures for HPIs.

(a) Required inspections. (1) The HPI shall physically inspect:

(i) All horses that perform with an accentuated gait that raises concerns about soring entered for sale or auction;

(ii) All horses, regardless of breed, entered in any animated gait class (whether under saddle, horse to cart, or otherwise);

(iii) All horses that perform with an accentuated gait that raises concerns about soring entered for exhibition before they are admitted to be shown, exhibited, sold, or auctioned, except as provided in paragraph (a)(2) of this section;

(iv) All horses that perform with an accentuated gait that raises concerns about soring and that are tied first in their class or event; and

(v) Any other horse in a class or event at any horse show or exhibition that, in the view of the HPI, raises concerns about soring..."

 

[9] 11.12(a)(1)ii.

[10] The removal of this language should not result in the inability of an inspector, or other authorized show official from enforcing the provisions of the HPA on any horse that exhibits evidence of having been sored.

[11] It is not clear that the proposed changes to the rules regarding the use of pads, bands, and corrective shoeing is intended to apply to horse show classes other than those for Walking and Racking horses. If they are not intended to be applicable, then language in the proposed rule needs to be changed to clarify that this is the case.

[12] We are not in these comments addressing all of the potential legal issues in the proposed changes. We attempt in these comments to make it clear that horses that are required to trot as a part of their competition in horse shows are not sored because soring creates a disadvantage because of the unsoundness it would create. However, we do note that the findings in the proposed rule that, "[a]bout 90 percent of the alleged violations documented at shows from FY 2010 through 2015 involved horses wearing pads",  is not an indication that pads are used in order to hide methods of soring. All of the Walking Horses found in competition classes other than certain pleasure classes will have pads. Pads are present in those competitions whether or not soring is involved. Thus, the finding of pads in horses that are sored is not an indication that pads are used in order to sore the horse or to hide a soring technique. Soring has not been documented outside of the Walking and Racking horse industries, yet many of the competitions involving the trotting breeds have horses that show in pads.

[13] Proposed Section11.2(b) states: "Substances. Any substances are prohibited on the limbs of any Tennessee Walking Horse, Racking Horse, or related breed horse that performs with an accentuated gait while being shown, exhibited, or offered for sale, or otherwise present on the grounds at, any horse show, horse exhibition, or horse sale or auction." In the definitional section it states that soring includes: (4) "Any other substance or device has been used on any limb of 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, except that such term does not include such an 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." It defines substance as "Substance means any agent applied to a horse's limbs while a horse is shown, exhibited, or offered for sale, or otherwise present on the grounds at any horse show, horse exhibition, or horse sale or auction. This definition also includes any agent applied to a horse's limbs before or after a horse is shown, exhibited, or offered for sale, or otherwise present on the grounds at any horse show, horse exhibition, or horse sale or auction." It is difficult to reconcile this language as written, but it appears to say that Walking Horses, Racking Horses and related breeds performing an undefined gait are prohibited from having any substance applied during a show or sale whether harmful or beneficial. The inability to use beneficial substances on horses in competitions is detrimental to the health of show horses. This section needs to make it clear that non-harmful substances are not banned.

[14] USEF 2016 Rulebook page 1065

[15] However, such intent must be clarified in the wording of the rule.

[16] Page iv

[17] Pages 1-2 (emphasis added).

[18] Page 3, title to chapter.

[19] Prizes and awards are not very large for individual walking horse events, unless it is a premier event such as the Tennessee Walking Horse National Celebration.  Based on information from the HIOs, cash prizes for walking horse shows typically range from $25 to $500, although the expert elicitation results show higher median owner revenues per show (table 4).  Ribbons, trophies, or saddles and tack sometimes are awarded.  Most of the revenue associated with a TW/R horse comes from breeding, such as stud fees and sales of colts which occurs usually after the horse no longer competes.  Therefore, winning competitions enhances the value of the horse and the reputation of the owners and trainers.  Based on responses from the experts, there is a large financial benefit for owners from breeding fees.  However the benefits may not be just monetary, but may include such intangibles as the pride and satisfaction of winning or placing in a competition.  Conversely, the cost of losing may be not only monetary but also include emotional and psychological distress regarding one’s reputation.

[20] See table 5, page 6.

[21] "Also, based on APHIS’ knowledge of the industry, the initial estimates of the additional cost to the walking and racking horse industry may range from $250,000 to $1,500,000." at page 8.

[22] "8. Describe efforts to consult with persons outside the Agency to obtain their views on the availability of data, frequency of collection, the clarity of instructions and recordkeeping, disclosure, or reporting form, and on the data elements to be recorded, disclosed, or reported. If applicable, provide a copy and identify the date and page number of publication in the Federal Register of the Agency's notice, soliciting comments on the information collection prior to submission to OMB.APHIS consulted with the following individuals:

Dr. Donna Moore

Veterinary Advisor, International Walking Horse Association

Rural Route 4,

Morral, OH 43337

dpmdvmms@yahoo.com

Nancy O'Dell Plunkett

Western International Walking Horse Association

26280 SW Baker Rd

Sherwood, OR 97140

www.bluemoonwalkinghorses.com

 

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