UPHA Responds to USDA
Thursday, October 27, 2016
Tammie Conatser, President of UPHA, submitted the following to the USDA as the UPHA's official comment on proposed USDA rules to enforce the Horse Protection Act.
October 16, 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). Founded in 1968, the United Professional Horsemen’s Association
(“UPHA”) represents thousands of horse trainers and other professionals, including 21 regional
chapters that comprise all 50 states and Canada. The UPHA is dedicated to bettering the
conditions of those engaged in the pursuit of various equine related activities, to supporting
research aimed at improving the horse as a species, and to promoting the development of a
higher degree of efficiency for its members in their efforts to improve the general condition of
the show horse industry.
On behalf of its membership, UPHA 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”). While the UPHA 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, UPHA cannot support the
proposed rule as drafted. UPHA is concerned that 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, UPHA believes that 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 UPHA’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.
UPHA also is concerned that 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, UPHA wishes to expresses its support for the comments filed by the American Horse
Council, Dr. Scott Bennett and Dr. Clif Paulsen, among others. UPHA 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 inspectionsto 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. UPHA 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 UPHA 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.
UPHA 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. UPHA 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
American Saddlebreds, Morgans, Hackneys, National Show Horses, Arabian Horses, Friesians,
Shetlands, and Roadster Horses, all breeds represented by the UPHA, 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 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. 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, including all the breeds represented by the UPHA, 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 represented by UPHA 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
at 6.) 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. UPHA 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 by
UPHA and others 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
UPHA and its members are 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.”
UPHA 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.4
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 multibillion
dollar industry.
UPHA 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 costbenefit
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.
UPHA 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
UPHA 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, UPHA 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.
UPHA 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,
Tammie Conatser
President
United Professional Horsemen’s Association
4059 Iron Works Parkway, Suite 2
Lexington Kentucky 40511
1 Am. Horse Prot. Ass'n, Inc. v. Yeutter, 917 F.2d 594, 595 (D.C. Cir. 1990).
2 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).
3 These terms, while different, appear to be used interchangeably in the proposed rule and appear 10 times in various
sections.
4 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).
5 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.
6 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-aprimer.
pdf .
|