BEFORE THE UNITED STATES DEPARTMENT OF AGRICULTURE
ANIMAL AND PLANT HEALTH INSPECTION SERVICE
APHIS DOCKET NO. 2011-0030
RESPONSE OF THE INTERNATIONAL WALKING HORSE ASSOCIATION, A USDA-APHIS CERTIFIED HORSE INDUSTRY ORGANIZATION INSPECTION PROGRAM,
TO USDA-APHIS HORSE PROTECTION ACT AND REGULATIONS PROPOSED RULEMAKING
FILED BY:
INTERNATIONAL WALKING HORSE ASSOCIATION (IWHA)
MARK MATSON, VICE PRESIDENT AND DQP COORDINATOR
720 CHARTER WOODS DRIVE
DATE: JULY 26, 2011
Introduction:
A recent communication from the president of the Walking Horse Trainers Association to its members read as follows:
“July 11, 2011
Dear WHTA Members,
July 26, 2011 at midnight could change the future of our walking horse industry. This is the deadline to respond to the USDA Rulemaking. (You have received the appropriate filing addresses in a previous news brief to you.)
This is a heartfelt plea to all WHTA members to take a stand and send in your PERSONAL response. This is the most significant matter that has impacted the Tennessee Walking Horse Industry in almost 40 years. OUR LIVELIHOOD IS AT STAKE. OUR PROFESSION IS AT STAKE. We CAN NOT live with the mandatory penalties.
Our Trainers Association has 650 members. It is absolutely imperative that each member sends in a response. Logically thinking, I know this is an impossible goal. However, if we can get at least a 70% response rate…this would be a huge accomplishment.
Remember, the time to ACT is NOW. We can’t answer today’s and especially tomorrow’s problems with yesterday’s solutions. That shoe no longer fits.
I challenge each of you to take the time and respond. This could be the only opportunity to save our future.
Thank You,
Bill Cantrell, WHTA President”
There cannot exist a more damning self-indictment of the Tennessee Walking Horse industry than what is contained in the foregoing communication and others similar to it. Penalties are only assessed to those who have already been deemed to be in violation of the HPA. Put plainly, penalties only apply to violators. One might logically then ask, “So, why is this industry so over-wrought regarding penalties? Why are these penalties described as so onerous as to threaten trainers’ livelihoods and the profession of training show horses in this breed when penalties only apply to ………. violators?” The reason for this all-consuming concern with penalties is as elementary as it is obvious, and the trainers understand it better than anyone. It is because they can’t conceive of a world in which they have to train horses without engaging in - as an integral part of that training - the prohibited acts described in the Horse Protection Act. Engaging in those prohibited acts as part of a horse’s training, regardless of whether it is a little or a lot, becomes a far riskier business in the face of significantly increased penalties. And, of course, that is the whole idea of the proposed mandated penalties becoming law.
Kenny Smith (KWHA) points out in his comment that if these penalties are enacted, then there will be more shows that will not affiliate with an HIO. Why would that be? The obvious reason is that those shows want trainers to come, and the trainers won’t show their sore-trained horses where there is increased risk of suspension. Therefore, the trainers will put pressure on the show managers to not affiliate with an HIO, in spite of the fact that doing so presents serious risks and liability directly to show management. The potential for this effect was mentioned as far back as in the listening sessions held in the mid-1990s. The trainers always point to this effect as a possibility, and they should know because it is they, who are largely responsible for it. This threat is made every time there is discussion about more effective inspections and/or stiffer penalties, which are clearly not wanted by the trainers. Again, penalties don’t enter the equation unless first there are violations. That the trainers view these proposed penalties as a life-altering concern points straight to the fact that they fully anticipate violating.
One of the most telling aspects involves the issue of “probation”, which does not exist under the proposed penalty structure. Probation wipes a trainer’s slate clean at the beginning of each year. Trainers have always wanted probation. Probation only matters to violators, and especially to those who are, or expect to be, repeat offenders, and it is otherwise of little consequence. Is it not another glaring self-indictment that trainers consider probation to be important to the point that they believe their very livelihood is threatened without it? But, how could that be possible unless trainers fully expect to be repeat violators in numbers sufficient to profoundly impact the industry? The plain fact is that they do violate in sufficient numbers currently to have such an impact, and they know it, and under these penalties that impact will be borne by the industry unless they simply STOP VIOLATING; STOP ENGAGING IN, AS PART OF TRAINING, THE PROHIBITED ACTS, DEVICES, SUBSTANCES AND PRACTICES OUTLINED IN THE HPA.
While penalties are to serve as a deterrent, it has been well established that the penalties set by HIOs have been virtually non-functional in that regard, as evidenced by the large number of repeat offenders – many of which are multiple repeat offenders. The American Association of Equine Practitioners (AAEP) Task Force (2008), the Independent Review Committee of the greater equine industry (1994), the USDA Office of the Inspector General (OIG) (2008 – 2010) and APHIS all concluded that industry penalties were woefully inadequate to effectuate the purpose and intent of the HPA (which, incidentally, is not merely to keep the sore horse out of the ring, but to abolish the practice of soring). In stark contrast to the approach of the walking horse industry, and provided as an example of the approach of other breeds, Denny Hales, then president of the Ohio Quarter Horse Association, stated with regard to AQHA’s approach to penalties for violations, “The first time we slap your hand, but the second time we cut off your arm.” (2008) The mandated penalties proposed in this rulemaking were drafted in order to address the industry’s weak, worthless penalties as well as to provide uniformity across the HIOs. While still significantly less than the maximum penalties set forth in the HPA, these penalties are designed to skew the risk/reward ratio in the direction of making engaging in the practice of soring a much higher risk venture than it has been with the intent to discourage the practice. The soring problem in this industry requires a systemic, across-the-board solution, and these penalties are part of that.
Industry decline; Is the USDA responsible?
This industry has had a party of corrupt, going-through-the-motions inspections coupled with meaningless penalties for decades with predictable results. Even in the absence of meaningful penalties, this industry is bearing the impact of the soring, cheating and corruption as over the past five years people have left the breed, its shows, and industry in record numbers. Today, the membership of the Tennessee Walking Horse Breeders’ and Exhibitors’ Association is roughly half of what it was five short years ago, and mare breeding and foals registered have declined by roughly 80% to numbers that are decades old. Attendance at shows has declined substantially as well, and many shows that have not folded are barely hanging on.
The decline in this industry since the 2006 National Celebration is due to a combination of key factors. The overall economy has certainly been a factor over the past three years, affecting all breeds and breed industries. However, the decline in this industry actually started during the USDA “listening sessions” in 2004 – 2006, and then rapidly accelerated after the 2006 Celebration in spite of the economy soaring to unprecedented heights in 2007. By contrast with most other breeds, the walking horse industry has seen a far worse decline, due primarily to the following factors specific to it:
1) Knowing the industry wants to keep the sore horse in the ring, and will not change of its own volition, many have also now given up on the USDA’s ability to solve the problem;
2) The age of the internet, cell phone cameras, etc., has made it impossible for the industry to control the flow of information, and can no longer keep a lid on its dirt.
3) Many on the sore side have left because they fear the USDA will ultimately win, and they will no longer be able show a sore horse like they want to;
4) Many die-hard sore horse people have made it clear that they will destroy this industry before they will give up their “right” to show a sore horse.
5) Certain grossly non-compliant HIOs continue to put sore horses in the ring while hiding under the cloak of USDA certification.
For many people, the far greater availability and immediacy of information has moved these matters past the point of mere suspicion, and into realm of knowledge. It is one thing to suspect soring and corruption, but quite another to know it for a fact, and most people in competition are not interested in being a victim of something they know to be corrupt. The exception to that is the person who becomes involved in the corruption, believing they can outdo someone else at unjustly advantaging themselves in some way. Corruption attracts corrupt people, and this industry has been like a magnet for them. Control of information was critical to the ability to question and attack the credibility of those who made claims regarding the ongoing soring and corruption. However, such control of the flow of information has simply become impossible in recent years, and the industry is paying for its sins as the shroud has been removed.
The USDA’s enforcement actions have not caused the decline in the walking horse breed and industry. It is the industry’s continued militant and defiant attitude toward true, effective HPA enforcement that has caused this decline. It is the ongoing war they have waged to keep the sore horse in the ring that has caused it. If this breed would embrace the true purpose and intent of the HPA, which is to end the practice of soring, then even with rigorous inspections this breed would be a rising star. This industry’s self-destructive love for the sore-trained horse is like an out of control ship bashing itself against the rocks of the law. It wants to blame the rocks while by its own choice it has put itself in harm’s way.
If the USDA bears some responsibility for the industry decline, it is precisely due to inadequate enforcement, a matter which they are now attempting to address. However, it should be noted that past enforcement attempts by the USDA have always been met with strong opposition by the industry, including the industry’s use of certain senators and representatives to back off the USDA. While there is a long history of political influence peddling by the industry, the most recent example of that has been the gross misinformation fed by certain industry parties, including certain rogue HIOs, to certain members of the current House Appropriations Committee. That misinformation resulted directly in the loss of the additional $392,000 in appropriations for USDA attendance at shows. It also resulted in the inappropriate potshot taken at the USDA by the Committee, including a threat to further cut appropriations. Interestingly, the Committee also reprimanded the USDA for not going through the rulemaking process to address these matters in spite of the fact that the very HIOs and aforementioned industry parties are 100% unified in their opposition to opening the HP Regulations for rulemaking.
Despite all indicators suggesting this industry should change its ways and finally accept that soring must end, it continues to fight, to its own detriment.
Penalties vs. Inspections
The walking horse industry is attempting to base a large part of its opposition to increased penalties on the claim of subjectivity of inspections. Dr. Steve Mullins, president of the SHOW HIO, makes a great deal of this in his personal response, as do others. First, the industry is attempting to tie penalties and inspections together as a bundle. They are not so tied, but are separate, albeit related, issues.
However, before addressing this issue it should be noted that Dr. Mullins is one of several veterinarians who have long-running, close ties with the industry, and most or all of whom have or have had clientele who sore horses. Those veterinarians are automatically suspect due to their obvious conflicts of interest. In fact, it is well known that some of these veterinarians have even helped their clients get horses in the ring by giving injections to block feet to get a horse through inspection prior to a class. Simply put, they are sympathetic to trainers who sore horses. Unfortunately, holding a DVM degree does not automatically confer ethics and morals on someone. However, even if we ignore that aspect, Dr. Mullins and most of the rest of the industry do not understand the difference between test variability and subjectivity.
Test Variability vs. Test Subjectivity
Test variability and subjectivity are two separate issues. All tests of every kind, shape and size, whether heavily operator dependent or independent and done by instruments – all of them have an inherent amount of variability. Run any test that is sufficiently sensitive multiple times, and you will get varying results. Does that mean that tests have no value? Clearly, the answer to that is an emphatic, “No!” Whether a test has value largely depends on whether it provides sufficient information to make whatever determination is necessary, and to do it with an acceptable amount of repeatability (within the same operator and lab) and reproducibility (between labs and operators), often referred to as “R & R”. Whether a test will serve its purpose most often involves whether the test can properly and sufficiently discriminate between two things. Once it is determined that a test can provide adequate discrimination, then confidence intervals are determined, commonly set at 95%. In other words, if a test is run 20 times, run properly according to the test protocol, then 19 out of the 20 times it will provide a result between X and Y. That interval is called the 95% confidence interval. The interval for reproducibility is always wider than for repeatability. These intervals are established empirically; then once the entire procedure is approved and the R & R approved, it is published as a standard. Test variability is an inherent, normal part of every kind of test and testing. The point is that product, whether it is a widget or a trained horse, should not be produced that is right at the limit of being out of specification. Good, sound training that is designed to develop the natural abilities of the horse, and which is designed to avoid the horse encountering and reacting to any kind of pain, will not produce a horse that is borderline with respect to HPA compliance. If a horse is borderline, which means its condition is at the limit and within the variability of the test (results of the test may be in one time and out the next), then that is the direct result of a conscious decision by a trainer to push the training in that direction.
Subjectivity is different than test variability. Subjectivity has to do with how much an operator can or does influence a test result, whether intentionally or unintentionally. All tests involving a human operator have an inherent amount of subjectivity, even assuming an operator is trying to do the test procedure exactly to protocol. The question becomes one of whether the amount of subjectivity is sufficient to render the test a bad test. Tests that are bad due to subjectivity are those in which the results are variable or skewed, due either to mal-intention on the part of the operator or which are beyond the operator’s ability to mitigate the operator-dependent variability. There are tests which, although highly dependent on operator skill, are still perfectly valid tests due to the operator properly controlling to the best of his/her ability those aspects of the test dependent on operator skill. Tests that allow a high amount of subjectivity can yield results that may vary from meaningless to outright misleading and harmful, depending on 1) the skill of the operator and/or 2) the honesty of the operator. The two areas of claimed subjectivity by this industry are with regard to the scar rule and palpation for reaction to pain. In both cases, it is the honesty of the operator that is the greatest issue, by far. IF a DQP (or VMO) wants to do the job correctly, then true subjectivity will be of little or no consequence. While normal test variability will remain as a factor, it will come into play almost exclusively with borderline horses. As a matter of fact, it is entirely possible to inspect horses with a high confidence level for properly determining compliance. Further, the confidence level is far above 95%.
Palpation presents a one-sided potential error when subjectivity comes into play. Contrary to what is popular, when the protocol for palpation is properly followed, it is not possible to apply enough pressure to make a horse react to pain that isn’t there. Peer reviewed work that has been done with the pressure algometer has demonstrated conclusively that to elicit a pain response in a truly sound horse requires many multiples of the amount of point pressure that it is humanly possible to apply with the ball of the thumb. That finding supports reams of anecdotal evidence to the same effect. In fact, truly sound horses don’t even react to the end of the thumb, or even to the thumbnail, no matter how hard they might be applied. That is not to say that it is not possible for a dishonest DQP to cite someone, claiming a pain response that did not occur, a situation that is relatively uncommon. Citing honest exhibitors with sound horses is relatively uncommon, as HIOs and shows do not generally want to discourage honest, sound people from showing, since the entry fees from them provide the funds to pay winnings to those with dishonest, sore horses. It is, however, not only possible, but is common practice to intentionally apply inadequate pressure to truly determine whether a horse is sore. Untold numbers of sore horses have gone in the ring using this dishonest technique. This common practice with certain HIOs is the other key reason (aside from meaningless penalties) why soring persists to the extent it does today.
The same scenario exists with enforcing the scar rule, a rule which involves tissue pathology other than true scars. The USDA has provided clear guidance regarding what is and is not acceptable, and it is, in fact, not difficult to determine whether a horse is in or out of compliance. Under IWHA’s approach, a horse that is not clearly out of compliance is not cited; in other words, the tie goes to the horse. However, the intent of the Act is that “evidence of abuse indicative of soring” will be cited, and if such evidence exists, then IWHA will cite the violator. Effective enforcement of the scar rule is necessary to achieve the purpose and intent of the HPA, which is to put a stop to soring altogether, including during training – not just to keep sore horses out of the ring.
The Borderline Horse – One time in; One time out
However, even assuming the desire to do the job properly, there exists the matter of DQPs and VMOs making varying calls on a horse. One might ask, “How can that be?” The obvious answer is that, driven by competition, some trainers chose to ride right on the line of being in or out. In other words, they are running right at the end or limit of the specification, and within the variability of the test. This approach is not unique to trainers in this industry. Driven by exactly the same kind of competitive factors, manufacturing companies choose every day to do exactly the same thing with their products, and face exactly the same “one time in – one time out” consequences. What is key to note is that THEY ALONE MAKE THAT CHOICE TO RIDE THE LINE. Nobody forces them to do it. It is their choice, and has nothing to do with a bad test. Just as it is not necessary to manufacture any other product right at the specification limit, it is also not necessary to ride that line in order to train a horse for competition.
While this industry cries, “Subjectivity! Subjectivity!”, one may rest assured that the last thing they want is for subjectivity to be driven out of this process. Why? Because 99.99% of the true subjectivity in inspections takes place on the part of dishonest DQPs and HIOs who continue to feather horses instead of properly inspecting them. Is that due to inadequate training or knowledge? No. It is due to simple dishonesty. It is due to the fact that this industry has intentionally and blatantly abused the inspection area to keep the sore horse in play. While oxymoronic to be sure, certain rogue HIOs have abused their certified status to literally claim a “USDA-Certified” stamp of approval on the butt of the sore horse going in the ring. Does that mean that the entire HIO/DQP approach cannot work? No. Clearly certain HIO programs are grossly fraudulent, whose primary goal is to protect their HPA violator customer base. However, just as there are honest people involved in the enforcement of any other law or rule, we can have honest people, who will do this job right. The only viable solution is to get rid of all those programs and individuals who are dishonest, and whose purpose and intent is quite the opposite of the HPA.
Can the USDA Mandate Penalties?
The more appropriate question is, “Should it be necessary?” The entire HPA, its purpose and intent, and the authority of the USDA as set forth in Section 9 of it, is mandated. That is what a law is; a mandate. Regardless of the fact that many in this industry hate it, and think that if they want to show a sore horse it should be nobody’s business but their own, the HPA is federal law. In fact, it actually should not even be necessary to mandate these penalties to HIOs, assuming that the HIOs’ goal is effective enforcement in line with the purpose and intent of the HPA. That it is even necessary for the USDA to mandate penalties exposes the real problem, which is that aforementioned assumption is false. In fact, the primary purpose and intent of certain of the HIOs is to function as a roadblock to effective HPA enforcement. Ultimately the only real solution is to get rid of the HIOs for which that assumption does not hold. They are not hard to spot.
The matter of HIOs as “State Actors”
HIOs, which indeed exist as private organizations, but which do not WILLINGLY enforce the law in the way deemed appropriate and necessary by the USDA have no business being certified, and need to be summarily decertified. The whole notion of certified HIO inspection programs was that the industry, with USDA oversight, would police itself. However, inherent in that notion was the presumption that industry self-policing would be sufficiently effective to achieve the purpose and intent of the HPA, which was to end the practice of soring. Instead, the industry has abused its role in order to achieve exactly the opposite of what was intended. The over-arching doctrine in all of these matters is that the HPA must be effectively enforced. Anything that stands in the way of that being accomplished is thwarting the USDA’s responsibility in that regard, and therefore, must be removed, including any HIO that does not properly function in the capacity of a certified inspection program. It is the USDA who is the sole authority in these matters; not the HIOs, and it is the USDA, who is ultimately responsible. All HIO inspection programs were certified by the USDA based on the aforementioned presumption, and by the exact same token, where that presumption has proven to be false, then that certification should be summarily revoked.
There is nothing which prevents a private organization, such as a certified HIO inspection program, to put rules and policies in place which would achieve the purpose and intent of the HPA. However, certified HIO inspection programs were brought into existence via rulemaking, and therefore, are part of the law, for the sole purpose of enforcing the HPA. HIOs which refuse to voluntarily function in the manner deemed necessary to achieve the purpose and intent of the HPA have simply made the case for their non-existence via decertification.
Further, it is completely untenable that the USDA could breathe into existence, via certification, an entity to perform a function under the Act, but over which the USDA ultimately has no control. The law of contradiction precludes two different entities having authority over this matter simultaneously, but unless the USDA has the authority to control, including the authority to decertify, including cease and desist authority, over an HIO, then multiple authorities do exist, which means there is no real authority. Simply put, any HIO which refuses to take direction from the USDA has set itself up as its own authority in matters for which Congress has vested sole authority in the USDA. By itself, such action on the part of any HIO should be grounds for immediate, summary decertification.
Due Process and Double Jeopardy
All of the complaints about due process rights being abridged are disingenuous, at best. The last thing these people really want is totally fair, objective and effective inspections coupled with all alleged violators going to federal court. However, SHOW has been the primary author behind the industry’s responses in this regard. The cases they cite simply do not apply. In the Derickson case, the primary focus of the USDA federal case was transporting a sore horse. However, it was first necessary to establish that the horse was sore as the basis for proceeding the transport aspect. What is commonly ignored by the industry is that when the federal penalty was imposed regarding the soring violation, credit was given that actually exceeded the suspension time already served under the HIO penalty. The other case cited took place at a time when there was no express or implied agreement between the USDA and any HIOs, although the prospect of such an agreement had been discussed. As such, that case simply had no application to the situation whatsoever. Regardless, the USDA has always been clear that they reserve the right to bring a federal case in situations where the HIO penalty was inadequate or in areas which were not addressed by the HIOs, such as transporting.
The fact is that these matters of “state actor”, “double jeopardy”, and so forth are being used by the industry in a blatant attempt throw any wrench they can find into the works to prevent the USDA from dealing with this 40-year old, ongoing problem of the sore horse. That these horses do not today have gross scars like they did in the 1960s and 1970s does not in the least mean that this problem has been solved. The industry’s position on these penalties stands as proof enough of that by itself. In the Dericksons’ case, they did not dispute that the horse was sore. Yet, that seems to be of little concern while this case is oft cited, albeit incorrectly, as one of double jeopardy. Clearly, this industry continues to be far more concerned about the interests of violators than it is in protecting the interests of those who abide by the rules and the law, and in enforcing the law.
Is there really a problem?
If you listen to many within the industry, they claim the soring problem is blown way out of proportion, and is basically a thing of the past. A couple or three years ago, a well-known trainer was interviewed for a morning television program the morning of the first evening of the National Celebration. He stated during the interview that soring was something that happened 40 years ago, but it was relatively rare today except for a few bad apples. That very night he received a ticket for a bilateral sore horse. The industry talks about all the “great strides” that it has made, which always compares our current state to something worse rather than what it should be. As support for their claims, they commonly cite compliance rates. However, the HPA compliance figures so often cited by the industry are statistically meaningless. The only potential purpose they serve is as an extreme minimum reference point, the true compliance rate being relatively far worse. The reasons the true compliance rate is far worse are: 1) the very DQP programs in question are those reporting a large percentage of the individual shows’ violation rates, the USDA not being present at 94% of the shows; 2) the overall rate includes the shows of “sound” HIOs, which have very low violation rates due to rigorous enforcement; 3) the overall rate does not include the horses not brought to inspection when the USDA is present; 4) the overall rate includes horses which get through inspection via use of drugs, no drug testing having been implemented in spite of the fact that precisely 2/3 of the 400+ swab samples taken by the USDA in 2009 were positive for illegal foreign substances, a high percentage of those including numbing agents.
It is interesting to see all the comments from people within the walking horse industry, who all think the current system works fine, and no new rules are needed. They are the only ones who think so. By all measures from virtually anyone outside the industry, its efforts at self-regulation are an utter and total failure. As previously noted, this is the recent conclusion of the American Association of Equine Practitioners (AAEP) Task Force, the USDA’s Office of the Inspector General (OIG), and was also noted by the 1994 Independent Review Committee of the greater equine community.
The International Walking Horse Association, one of the certified HIOs, inspected 21 shows last year and will do more this year. We support showing these horses in every division from Country Pleasure to the Padded Performance horse. We have put thousands of entries in the ring, entries which include both padded and flat shod, and we have written very few violations. Many/most of these horses, both padded and flat shod, have successfully shown multiple times, so it is not a fluke. Put another way, if people properly train these horses without subjecting them to the things prohibited in the HPA, then inspections are not the subjective role of the dice that this industry wants to claim they are. On the other hand, there are many people who will not show their horses with us, and the reasons are glaringly apparent. It isn’t because of “subjectivity” or any of that nonsense. In fact, it is precisely because of the lack thereof. In other words, rigorous but fair inspections are themselves serving as a deterrent against non-compliant horses showing with IWHA, and that is exactly as it should be. For those who are foolish enough to consider bringing a non-compliant horse, the penalties are a further deterrent. Yes, there will undoubtedly be some who will still try, but they will either change their ways, or they will be out of it on suspension, and that is the whole idea.
Unfortunately, a large portion of our show industry remains intent on keeping the status quo in play, and it is killing our breed and our industry. In the world of people who break the law and have no real compunction about it unless they get caught, at the top of their “wish list” is to have no law. But, if you have to have a law, then the next best thing is to have no real penalties for breaking it. However, better yet, put yourself in charge of enforcing it so that you use it to your own advantage and to disadvantage others. Of course, at the top of the list to disadvantage would be anyone who thinks such an enforcement system presents a problem and needs to be changed. To those knowledgeable, this scenario is all too familiar. We need those who sore horses during training to go away, as well as the HIOs that cater to them. Only when this industry is no longer a safe haven for those types will we see a brighter future as a breed and show industry. The key is to get rid of all those programs and individuals who are dishonest, and whose purpose and intent is quite the opposite of the HPA. Once that is done, then it may not be perfect at that point, as humans are still involved and always will be, but it will be a lot closer to perfect than the corrupt mess we have today with certain notable HIOs. Is it any wonder that we have not solved this problem and have so much concern about how loss of probation affects violators when those charged with enforcing the HPA regularly undermine it with their non-compliant inspections?
I can testify from personal experience that this job can be done correctly, fairly, and effectively. It very simply comes down to having people who want to do it that way. When HPA enforcement is carried out correctly, including imposing meaningful penalties, it
1) will serve as an effective deterrent,
2) is fair,
3) will shortly put an end to soring,
4) will result in the loss of some people and horses in the this industry (the so-called “harm”), but,
5) will result in the bad elements being replaced with a better cut of people and position this industry for great growth.
Conclusion
In conclusion, those in the walking horse industry, who oppose this rulemaking and these penalties are attempting to defend the indefensible. In particular, in this case, they are attempting to defend and protect the interests of violators. They want to defeat any changes to the Regulations, maintain the status quo, keep their corrupt HIOs in play, and maintain the ability of trainers to sore these horses during training. In short, outside of their ever glib lip service, virtually everything they stand for stands in direct contradiction to the purpose and intent of the Horse Protection Act.
IWHA supports these penalties, and asks that upon consideration of the potential modifications listed below, that the Secretary write these penalties into the Horse Protection Regulations. Further, we believe that there should not exist perceptible differences between HIOs with regard to HPA enforcement, including in the penalties imposed, and they should certainly not be allowed to exist as a competitive factor between HIOs. Further, IWHA strongly encourages the USDA to swiftly propose language to summarily decertify HIOs who are grossly non-compliant, who continue to put sore horses in the ring, whose purpose and intent is clearly not in line with that of the HPA.
Submitted for consideration
Specific recommendations regarding the proposed Regulation language under this rulemaking, submitted for Department consideration:
1) The language needs to be altered to clearly prohibit anyone who is on either federal or HIO disqualification from participating at a horse show in any way other than as a spectator. The proposed language is not sufficiently clear in that regard. This language already exists in the Points of Emphasis, but should be included in the changes to the Regulations. Further, the prohibition from participating should extend to include coaching via electronic/radio communication from the suspended party to anyone working with a horse on the grounds or riding it.
2) Language needs to be added which, for purposes of serving suspensions, requires that they be served during the show season, which should be defined to exclude the months of December, January, and February. Allowing suspension to be served in the off-season provides no deterrent effect.
3) Language should be added which requires that in the event of a post-show violation, all prizes, awards, premiums, titles, trophies, etc., must be stripped from the violator and the horse found in violation, and the class must be re-tied. Failure to impose this requirement allows significant benefit to be derived in spite of a violation, which flies directly in the face of the purpose and intent of the Act. An alternative would be to significantly strengthen (such as x3 or x4) the penalty for post-show violations.
4) Any violation results in the horse being suspended for the duration of the suspension of greatest duration of any other party related to that violation. The horse is the vehicle to obtaining benefit via inappropriate means. The vehicle should be de-commissioned so that it is not merely passed to another party, and the inappropriate benefit still derived by doing so.
5) Finally, even the best penalties are meaningless so long as HIOs continue to exist, who have no intention to enforce the HPA (except perhaps via lip service). Strong language needs to be drafted to allow the USDA to immediately summarily decertify HIOs, making it clear that upon notice of decertification their certified status is revoked unless and until it is re-instated following successful appeal, and that they must remain inactive with regard to all HPA enforcement activities, including affiliating and inspecting shows, during the appeal process.
Respectfully submitted,
Mark L. Matson
INTERNATIONAL WALKING HORSE ASSOCIATION
July 26, 2011
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