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FAST Issues August Update



 

Rule Making:

The industry and its counsel and lobbyist were quite busy in the month of July and August  addressing matters pertaining to APHIS regulations of the Tennessee Walking Horse show industry. 

At the beginning of July, members of our Industry prepared for and met with OIRA (Office of Information and Regulatory Affairs).  OIRA is the government entity that serves as a watch-dog to assure that other agencies properly consider various factors when promulgating proposed rules.  Among those factors are the impact that the proposed rule would have on the participants in the industry affected by the proposed rule, whether the agency has considered less impactful alternatives to the proposed rule, and whether the costs of the proposed rule justify its benefits. Representatives of the industry met with OIRA in two separate meetings, and in those meetings and a subsequent detailed letter outlined various failures or deficiencies by APHIS that we identified when they developed the proposed Rulemaking. 

We have continued to work diligently digesting and analyzing the notice of the proposed rule, collecting information, doing research and discussing the proposed Rulemaking and the Industry response. We also met with the Small Business Administration (SBA) Office of Advocacy in the rulemaking proceeding. The SBA Office of Advocacy is an independent executive branch office. SBA Advocacy’s mission is to be an advocate for small businesses in addressing the impacts of proposed agency rules.  APHIS determined that the proposed rule would not impact a significant number of small businesses; we strongly disagree. It was important for us to engage SBA Advocacy and to demonstrate to it that, in fact, the proposed rule will negatively impact a significant number of small businesses – from shows, to farriers, to trainers, to DQPs and so on. 

Several individuals/segments of our Industry (including farriers, trainers, DQPs, HIOs, shows, and horse owners) met with the SBA the first week of August in Washington, DC—some in person and others by conference call to articulate the negative impact the Rulemaking would have on the industry and those whose livelihoods are impacted by the industry.    

Counsel also drafted and sent a letter to Mr. Shea, copying the Secretary, Ms. Juarez and the General Counsel’s office that has been released for industry review.  While the response to the letter was less than fruitful; it was expected; however, it is imperative for the industry that it continue to build its case and the letter sent to Mr. Shea was an important part of establishing the foundation of the industry’s case in responding to the rule making. 

On August 31st following a review of inspection issues that have occurred during the Celebration, Attorney Wilson drafted a second letter to the General Counsel for the USDA Jeffrey Prieto.  That letter can be moved HERE.  

 

Contender II

In June 2012, SHOW challenged the USDA’s rules requiring HIOs to assess mandatory minimum suspension penalties against those people based on DQP inspections. The United States Court of Appeals for the Fifth Circuit ruled that HIOs cannot enforce the HPA by penalizing people; only the USDA is authorized to enforce the HPA.  The HPA means what it says:  No penalty shall be assessed for violation of the HPA except after notice by the Secretary, an opportunity for a formal hearing and only by written order of the Secretary.

Nonetheless, the USDA continues to claim that entrants have violated the law using three unlawful protocols, processes and programs. The USDA determines that entrants have violated the Act using the IES Investigative and Enforcement Process, basing its decisions on the uncontestable VMO’s inspection report.  The USDA also uses the Protocol for Foreign Substance Penalty to decide that entrants have violated the HPA foreign substance prohibition and assesses penalties based solely on a positive result from a swab sample tested by some unidentified lab.  The Agency also treats the penalties assessed by HIOs as establishing that people who enter horses that are disqualified based on DQP inspections are responsible for violations of the HPA. 

Based on these processes, protocols and programs, the USDA has published on its website lists that falsely identified people as having been determined to have violated the HPA. These lists falsely mislead the public into believing the industry is rife with cheaters that the USDA has caught violating the law. On June 8, 2015, the USDA was requested to remove these misleading lists from its website. At that time there was a searchable list on the USDA’s website identifying thousands of people who had been assessed an HIO penalty.  This list was rendered useless after the Fifth Circuit decision, and after the demand that the lists be removed, it was taken down. Other lists continued to be published; so on February 29, 2016, a lawsuit was filed to have these lists removed.  

The USDA’s Enforcement Actions List for 2010 through 2015, falsely identifies 2,532 people as having been determined by the Agency to have violated the HPA. Of those, 2,345 were unlawfully labeled violators under the Protocol for Foreign Substance Penalty and IES Investigative Process and issued a Form 7060 penalty. This list continues to be published and updated monthly. 

The USDA also published a searchable list that misleadingly identified about 2,400 people as “violators.” This list reflected the USDA’s unlawful decisions that people violated the HPA based on the IES Investigative and Enforcement Process and Protocol for Foreign Substance Penalty.  The day after the lawsuit was filed; the USDA changed the column for “violator” to “alleged violator” and the column for “violation” to “alleged violation.”  This change was also false and misleading, because there were no alleged violators or alleged violations.  In May 2016, this list was removed from the USDA’s website. 

There were also 15 additional USDA lists of “violators” based on HIO records. Five lists, for the years 2010 through 2014, identified more than 12,000 people as “persons responsible for violations.” These lists have misled the public and elected officials into believing that the almost 15,000 people—who never received notice of an alleged violation, never had a USDA complaint filed against them, never were afforded the opportunity for a formal hearing before the Secretary and have never had the Secretary determine they violated the Act—have violated federal law. After several requests, in August 2016, these lists were removed from the USDA’s website.

The USDA can reinstate these lists if it desires. The purpose of the pending lawsuit filed in the district Court in Fort Worth, Texas is to stop such abuses. The court has been requested to declare unlawful the USDA’s use of the IES Investigative and Enforcement Process, the Protocol for Foreign Substance Penalty and the HIO Penalty Program to determine a violation of the Act and to penalize people. The Court is being asked to declare that the USDA’s publications of the lists as unlawful. Finally, the Court is requested to enjoin the USDA from continuing these unlawful actions and practices.

We have achieved some of the results we sought in filing the lawsuit. All but one list has been taken down.  However the USDA continues to use the IES Investigative and Enforcement Process and Protocol on Foreign Substance Penalty   without notice or hearing, that they violated the HPA. The Agency continues to punish people with the issuance of a Form 7060, which it publishes on its website, identifying the “Violator” and “Violation.”   

Fundraising:

To date, the industry has raised in excess of $342,000.00 toward the FAST Preservation/Legal Fund.  To date, legal expenses in the amount of $101,497.00 have been paid leaving a balance of $240,792.00.  I am pleased to announce that 100% of the FAST Board of Directors has contributed to the Preservation/Legal Fund, 100% of the Walking Horse Trainer’s Association Board of Directors has contributed to the Preservation/Legal Fund and 100% of the Celebration Board of Directors has contributed to the Preservation/Legal Fund.  The Trainers have donated collectively in excess of $50,000.00 with more coming in and are currently selling raffle tickets for a Polaris RTV sponsored by donors so that 100% of the proceeds will also go to the Preservation/Legal Fund.  

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