RESEARCH - The Results of the Comments to The Mandatory Penalties Proposal

I decided to go through all 898 comments submitted to the USDA concerning the proposal for the mandatory penalties. I broke them down into several categories, and I've detailed what I found below. *UPDATED 7/29: I recounted as I was way off base! The correct numbers are below.*

But first, let's make something very clear: this absolutely was not a voting issue. No one "won" here. No matter which side had more comments, for or against, it was not a matter of numbers as to whether or not the USDA will mandate the penalties. The USDA will be considering all comments and will make a decision based on the facts and the comments.

So, here's the data as I found it to be. Some responses were completely unrelated, so those aren't counted here. Please note that mistakes can be made--I could be off on numbers here and there. I did not double check my work as it took me many hours to do this, so anyone who wishes to do so is welcome to it.

For Mandated Penalties

Individual Responses: 133

Responses sent to one association for submission: 27,349

Associations For: 10

American Association of Equine Practitioners (AAEP)

American Horse Council (AHC)

American Horse Protection Association (AHPA)

American Society for the Prevention of Cruelty to Animals (ASPCA)

American Veterinary Medical Association (AVMA)

Animal Welfare Institute (AWI)

Friends of Sound Horses (FOSH)

Humane Society of the United States (HSUS)

International Walking Horse Association (IWHA)

Total For: 27,492

Against Mandated Penalties

Individual Responses: 716

Responses sent to one association for submission: 0

Associations Against: 7

Kentucky HIO (KY-HIO)

Professional Regulation and and Inspection for Dedicated Equestrians (PRIDE)

Sound horses Honest judging Objective inspections Winning fairly (SHOW)

South Carolina Walking Horse Ladies' Auxiliary (SCWHLA)

Tennessee Walking Horse Breeders' and Exhibitors' Association (TWHBEA)

Walking Horse Owners' Association (WHOA)

Walking Horse Trainers' Association (WHTA)

Total Against: 723

Of course, the four HIOs who did not agree to the mandated penalties are against. That was a given. And the KY-HIO is of course against the penalties. But what do you expect from a group that is well known for bullying the USDA and having a VP who put so many chemicals on a young colt that its pastern was nearly burned off and the colt had to be put down?

I think TWHBEA has overstepped its bounds. Did they have a vote within their membership to ask if people were for or against the new penalties? If I were a member of TWHBEA, I would be canceling my membership after seeing they are against the penalties. They certainly wouldn't be representing my membership. TWHBEA continues to go back and forth as well. First they say they're "only" a registry, so they won't get involved, but then when it comes to stuff like this, they always jump right in. This is why I won't support them in any way.

Now on to the comments.

The most amazing but not totally unexpected part of this was how many HPA violators commented, and of course, all of them were opposed to the new penalties. My favorite was how several HPA violators said they have never hurt a horse in their life and that they stick to the code of ethics for training TWHs, yet the HPA database shows us they have sore and scarring violations. So maybe the code of ethics includes pretending that soring isn't hurting the horse.

I also discovered that the industry has obviously not read the structure of the penalties correctly and had two major complaints: they say the USDA does not have the authority to change the law and that the penalties don't allow for due process.

First, no, the USDA does not have the authority to change the law. However, they DO have the authority to AMEND the law, and this is per the Constitution and stated in the HPA itself. If the industry would have actually read the new penalty structure, they would have seen the word "amended" in the changes. Plus, the HPA specifically says in Section 1828: "The Secretary [of the USDA] is authorized to issue such rules and regulations as he deems necessary to carry out the provisions of this chapter [Chapter 44]" (HPA, USDA APHIS website). The new additions would be added to 9 Code of Federal Regulations (CFR) 11, and CFRs don't need an act of Congress to add to them.

Second, I don't think people realize what due process really is. The simple definition of due process is "the legal principle that the government must respect all of the legal rights that are owed to a person according to law" (Wikipedia, "due process," 28 July 2011). So what does that mean? It means that when the government finds someone violating a law, the person does have rights according to whatever that law says, such as they must be tried in court or whatever the law might cover. The HPA itself does not ignore due process. It specifically says in Section 1825(b)(1): "No penalty shall be assessed unless such person is given notice and opportunity for a hearing before the Secretary [of the USDA] with respect to such violation." As stated in Section 1825(b)(2), the person who violates the law is allowed to appeal the court's decision within 30 days of the court's decision. Plus per the added 11.25(d) for 9 CFR 11, the HIOs must provide a process by which people can appeal the court's decision. All of this is due process.

Overall, does anyone really think that the USDA is going to circumvent the law and do whatever they want? They have been fighting this for nearly 40 years - they aren't going to make such a simple mistake in their new rules.

Some other comments included trying to point the finger at other breeds, such as racehorses. The HPA does not cover breeds other than TWHs or other high-stepping gaited breeds, so trying to pass the blame onto someone else is ridiculous and fruitless.

Other comments included saying the industry will shut down and people will be out of jobs. But here's the kicker: if your horses are sound, then you should still be able to show with no penalties. So if the industry is going to fall, then does that mean everyone is soring their horses? As one woman said in her comment: "If you cannot operate within the industry without a clean horse you need to find another business." If the industry is being destroyed then it is by their own doing by continuing to sore and allow sore horses in the ring. Or if the industry is going to shut down because of new penalties, does that mean that they CAN'T create a sound horse, and they can only get the look they want by soring? The USDA has not caused the economic decline of the TWH industry. If people are leaving it because they don't like that the USDA is actually enforcing the federal law, then that's their issue, not the USDA's. It is a CHOICE to leave the industry; no one is putting a gun to your head and saying leave. It's not the USDA's job to make the industry survive. The HPA is about protecting the horse, and if the industry can't do that, then there's nothing the USDA can do to help them. So overall, new penalties should make you clean up your act, not force you out of business. You want your industry to continue? Stop soring horses. Easy peasy, lemon squeezy!

There is also a major focus on the scar rule. I do agree that the inspection process is too subjective. But at the same time, scars from soring are completely different than a pasture accident scar, a barbed wire scar, a horse clipping itself, and any other medical type scar there is out there. Plus, no other industry other than the TWH has horses that show the scars that are indicative of chemical soring. The USDA pointed all of this out in their Listening Sessions in 2006 so I won't go into it here. If a DQP cannot recognize this, then there is obviously something wrong with the HIO's training of the DQPs. What I believe the USDA does need to do is eliminate DQPs and HIOs and have VMOs only doing the inspections. But because shutting down the HIOs is more difficult, then this is the next best choice.

Overall, not one person who opposed the penalties was outside of the industry. Many times I saw that people said that soring has been completely eliminated, and that really made me laugh. A few times I saw that people said the mandatory penalties will "harm the Tennessee Walking Horse." This makes no sense--the penalties will further protect the horse. It will only harm those who will continue to sore their horses. I saw no statistical evidence that the VMOs and DQPs can't agree on a scar, no statistical evidence that horses are X percent compliant, no proof that horses are cleaner than they were before. Just hearsay and misinformation. Plus there were lots of different percentages that horses are compliant: 95%? 97%? 98%? Which is it? It was obvious that the majority of the responses were not based in reading the proposed penalties or understanding what due process or the HPA actually mean.

For those who were for mandating the penalties, there were many people who were outside of the TWH industry who support it. This includes the AVMA, the AWI, the HSUS, the AHPA, and the AAEP. Even some lawyers--WOW! Lawyers!--were all for the penalties. These are people who neither benefit nor experience loss according to how the TWH industry functions. It also says a lot that they are professional veterinarians and animal welfare groups and they agree with the penalties.

I'm glad to report that the AVMA, AAEP, and IWHA responses bring forth, echo and enforce all at the same time so much of what those of us who want to see soring end have been saying all along. See below for their responses--click the button that says PDF or DOC to the right to open the document.

AVMA comments

AAEP comments

IWHA comments

It amazing how many people are supportive of stopping soring and saving the TWH from this continued abuse. Thank you, one and all, for making your voices the horses' and helping them speak when they cannot speak for themselves.