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PSHA Releases Statement To Subcommittee



The following is the statement released today by the Performance Show Horse Association that was submitted at the hearing on H.R. 1518 before the Commerce, Manufacturing and Trade Subcommittee.

House Energy and Commerce Committee
Subcommittee on Manufacturing, Commerce and Trade
November 13, 2013

Chairman Terry, Ranking Member Schakowsky and Members of the Subcommittee:

The Performance Show Horse Association appreciates the opportunity to provide a statement regarding H.R. 1518 and the negative impacts this legislation would have on the Tennessee Walking Horse industry and the communities and families that work in and depend on this industry. 

The Performance Show Horse Association is a multi-state organization representing walking horse shows, trainers, owners, breeders and other long-time participants in the walking horse industry.  Our organization was established to bring about, through the industry, needed reforms that will restore the credibility and integrity of our sport and, at the same time, ensure that those few people who have created a negative perception of our industry are removed.  Our goals are to bring common-sense and realistic reforms that will protect the horse and save the industry.

The entire equine world is built on the beauty of the horse, its abilities and the desire of its owners to show , exhibit, and compete to win.  By and large, the Tennessee Walking Horse industry stems from a family-based hobby for most owners who love this breed of horse and enjoy the community, tradition and competition the horse show industry provides.  The Tennessee Walking Horse is an extremely gentle and docile breed which allows amateur riders of all ages to participate and enjoy this sport.  In fact, at this year’s world championship horse show, the youngest rider competing was 4 years of age, with the most “elite” rider winning a championship at age 96. This industry is certainly not about making its participants rich.  The average prize for a typical Saturday night horse show is $75 per class with an entry fee averaging $40 per class. 
 
And why is this legislation and the severe economic impacts associated with it being proposed? Because the Humane Society of the United States has an agenda to eliminate the horse as a farm and sport animal. They have an agenda to eliminate the horse from all competitive arenas. Their goal is to make the horse a companion animal.  Make no mistake - this is a HSUS bill. The connection between Mr. Whitfield and the HSUS is irrefutable – his wife is a paid lobbyist for the Humane Society of the United States and the Humane Society Legislative Fund.

ECONOMIC IMPACT OF PROPOSED LEGISLATION: 

This legislation, if passed, could and would most likely be the death knell of our industry. The Tennessee Walking Horse industry has been hard-hit by the poor economic conditions of the last few years as well as much more aggressive and retaliatory inspection and oversight activities by the U.S. Department of Agriculture.  In 2000, there were over 80,000 show horses; today there are approximately 15,000. The very foundation of the Tennessee Walking Horse sport would be decimated. The Celebration, our World Grand Championship, which is akin to the Thoroughbred Industry’s Kentucky Derby or the American Saddlebred’s Worlds’ Championship Horse Show at the Kentucky State Fair, has had a decline of 50% of horses competing in the last 5 years.  And the economic impact to this Industry and associated supporting farmers, small businesses and untold employees would be staggering as there are over 20,640 direct and indirect jobs associated with the Tennessee Walking Horse and show horse industry across the country as identified by the USDA’s report in 2012. (Click Here – Exhibit A).

NO FACTUAL SUPPORT FOR ELIMINATION OF WEIGHTED SHOES AND ACTION DEVICES:

One of the changes called for in the proposed Whitfield/HSUS bill is the elimination of all “weighted” shoes for Tennessee Walking Horses.  It is indisputable that this provision alone would eliminate approximately 85% of the show and performance horses as outlined in the attached list of “weighted” shoes and associated number of horses.  The attached exhibit shows that at sanctioned horse shows, approximately 85% of the classes allowed for participation require a weighted shoe and, under this legislation, those classes and corresponding horses would be eliminated. (Click Here Exhibit B ). 

The stated reason for eliminating 85% of the Industry show horses is the allegations that “all horses are sore.” This incorrect statement is continually reinforced by using undocumented and inaccurate inflammatory language that “rampant soring continues”, and there is “massive abuse” in the industry.

It even appears that the legislation’s authors have been able to convince 2 professional organizations, the American Association of Equine Practitioners and the American Veterinary Medicine Association, to make an inaccurate statement with no basis in fact  that “because the inhumane practice of soring Tennessee Walking Horses has continued and because the industry has been unable to make substantial progress in eliminating this abusive practice, the AVMA and the AAEP believe a ban on action devices and performance packages is necessary to protect the health and welfare of the horse.”  (Emphasis added).

These organizations have stated publically that “there is little scientific evidence to indicate that the use of action devices below a certain weight are detrimental to the health and welfare of the horse…” (AAEP/AVMA joint statement June 14, 2012).  As professional organizations, it is surprising that they support legislation that completely disregards their own public statements and the only comprehensive scientific study that has been performed, the “Auburn Study” (Attached as Exhibit C), that documented that the pad and action device utilized today and recognized in current regulations do not cause harm to the horse.

Additionally, the motivations and professional integrity of these organizations must be called in to question as they seek to eliminate the Tennessee Walking Horse industry while remaining strangely quiet about the abuses and deaths that occur on a daily basis within the Thoroughbred Industry.  In the period of 2009-2011, over 3000 thoroughbred horses died as a result of racing or the training connected to racing.  In this same time period, ONE Tennessee Walking Horse participating in show events died.  (See the attached New York Times article regarding this issue – Exhibit D).  Interestingly, the AAEP, regarding a piece of legislation seeking to add more regulation to the racing Industry, encouraged Congress to work with the Horse Racing Industry regarding issues it had, not eliminate it as they are proposing here.  

However, these inflammatory and incorrect statements by this legislation’s sponsor, the Humane Society of the United States and their supporters are easily countered by FACT.  According to the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (“APHIS”), the regulatory agency charged with managing and overseeing the Horse Protection programs, the HPA compliance rate for the HIO-affiliated Tennessee Walking Horse shows was 98.5% over the period 2009-2012.  In fact, in the last year, USDA violations at the Tennessee Walking Horse National Celebration decreased by 33%. Those are the facts.  Most importantly, these compliance rates are by and large a result of SUBJECTIVE testing methods, subject to human bias and mistakes, rather than science-based OBJECTIVE testing.

We have not been able to find any other Industry, either government-regulated or self-regulated, that is 98.5% compliant using clearly subjective inspection protocols. By way of example, based on publicly reported numbers generated by the U.S. Department of Agriculture, its Food Safety and Inspection Service (FSIS) branch reports an approximately 98% compliance rate for 2010 and 2011, using we hope objective inspections as they are dealing with our countries food supply.  If the Federal government’s own agency is to be believed, and which is in direct contradiction to the misrepresentations of Congressman Whitfield, the Humane Society of United States and their supporters, only a very small percentage of Tennessee Walking Horses are out of compliance with the HPA.  We believe, however, that with common-sense and realistic reforms, this number can be further reduced through the industry’s proactive reforms and self-regulation.

Proponents of this bill also claim the weighted shoes used by 85% of the Tennessee Walking horses currently competing are used to “hide” abuse.  They claim such soring techniques are “regularly used” and have been “documented”.  However, the only documented instance of “pressure shoeing” in the last four or five years was detected through inspections performed by an HIO inspector – not the USDA.  We are unaware of the USDA ever prosecuting  any individual for allegations related to “pressure shoeing” abuse despite the hundreds of digital x-rays performed by USDA inspectors over the years. 

In fact, veterinarian review (Attached as Exhibit E – Statement of Dr. John Bennett) of the Tennessee Walking Horse credits the use of pads with the decrease in laminitis issues found in competition Tennessee Walking Horses as compared to other competitive breeds.  Also, Tennessee Walking Horses regularly compete into mid-teen ages and the World Championship Horse show has a class designated for Classic Horses, which are those 15 years of age and older and in this year’s Celebration, 32 Classic horses competed.
 
THE CURRENT SUBJECTIVE INSPECTION PROCESS:

As noted, it is extremely important that you as a Member of Congress understand the inspection process and methodology placed upon the industry by APHIS. Under the Horse Protection Act, both Designated Qualified Persons (DQPs), inspecting on behalf of the HIOs, and APHIS inspectors utilize subjective testing methods.  Nevertheless, the inspection procedure currently used is one of the most extensive and intrusive used in any agriculture-related inspection. 

The subjectivity creates significant inconsistencies, allows for the introduction of personal bias and creates constant problems and conflicts.  What other industry goes through a series of inspection stations by both DQPs and Government VMOs prior to competition and can pass but fail an inspection 30 or 45 minutes later after it competes?

How can consistency be achieved when 2 different USDA inspectors disagreed 26% of the time when inspecting the same horse at the same time?  (See Exhibit F – Joy Smith Affidavit)  These are consistent and constant problems that can and should be solved.  But, again, even with this subjectivity, the industry’s horses have a 98.5% compliance rate.

 

CLAIMS REGARDING “FOREIGN SUBSTANCE” TESTING:

Another claim made by the sponsor of this legislation and his Humane Society of United States allies is that in one instance of testing, 52 out of 52 horses tested positive for the presence of foreign substances and, therefore, must be sore.  Under current regulation and the testing methodologies used by the USDA inspectors, the Department has a zero-tolerance policy.  The current testing methods essentially require a horse’s foot area to be sterile with the exception of certain lubricants identified in the regulations– despite the fact that the Act only prohibits foreign substances which are intended to alter the gait of the horse or mask the inspection process.  

Even a proponent of H.R. 1518 (USEF – United States Equine Federation) has said that “zero-tolerance” is an unacceptable protocol.  Numerous experts in the field of mass spectronomy (the technology used by USDA inspectors) agree that, given the current technology and advances since its introduction in 1970, a zero tolerance protocol is unacceptable.  The technology has improved exponentially and detection on the level of 1 part per billion is possible. 

An additional issue with the Department’s Foreign Substance Policy is that they have not developed or identified any type of baseline or tolerance level. They have not established by policy or regulation which “foreign substances, and at what particle level, cause soring.  The current “foreign substance” testing returns a “positive” result for any substance present on the horse’s foot – including those which common sense would tell you are not intended to alter the horse’s gait such as hoof paint, fly spray and other normal equine care products.  

Additionally, in 2012, the Walking Horse Trainers’ Association instituted a swabbing program aimed at protecting the welfare of the horse and increasing compliance by its member trainers.  Both the AAEP and AVMA were approached in face-to-face meetings and through correspondence soliciting the organizations’ involvement in development of the swabbing program and participation in its implementation.  Neither the AAEP nor the AVMA chose to assist the industry in its efforts to eliminate soring and, instead, issued a statement supporting the ban on pad and action devices which was contradictory to their previous public statements.  

Most significantly, however, is the fact that the Department has NEVER brought an HPA violation case against ANYONE for ANY foreign substance violation.  This fact shows that even the Department knows that their methodology, protocols, lack of baseline, lack of any independent or peer-reviewed scientific data concerning acceptable or unacceptable foreign substance and process would not stand up under scrutiny in a court of law. 

The statements, therefore, by the author of H.R. 1518, the Humane Society of the United States and their supporters that “all horses are sored”, that “rampant soring continues” and that there is “massive abuse” are, quite simply, factually incorrect and not backed up by any fact whatsoever.  When an organization is pushing an agenda, the truth is not a concern.  For any individual or group to attempt to use these findings as support for their claims that these horses are sored and/or that the shoes and actions devices should be removed is absurd. 

 

 

ADDITIONAL EXPENSE TO FEDERAL GOVERNMENT OF PROPOSED LEGISLATION:

The Legislative History and records regarding creation of the Horse Protection Act and the amendments in 1976 indicate the clear intent of the legislation was to provide for industry self-regulation that was overseen by and partnered with the Department of Agriculture and APHIS.  In fact, the amendments passed in 1976 were a response to the Department’s failure to adequately inspect and Congress’s recognition of the need to create industry inspection methodology through the creation of the Horse Industry Organizations.  H.R. 1518 guts the very foundations of the Horse Protection Act and these amendments from 1976, eliminates the self-regulatory mechanics of the bill and turns over to the Department all control, oversight, authority and actions.  And yet Congressman Whitfield has stated that “this amendment…does not cost the federal government any additional money.”  That statement is false and, in fact, this legislation will cost a great deal if enacted.

First and foremost, the elimination of the HIOs will require ALL tickets written at shows to be adjudicated by the Department as, currently, the HIOs handle that process for the majority of the written tickets.  So any ticket written for scar rule, foreign substance detection, soring, etc., must be dealt with by Government staff, attorneys, and support personnel as we certainly would not question Congressman Whitfield’s belief in due process of law.  Therefore these violations must be provided that process. 

 Secondly, the legislation, if enacted, would require additional funding due to the fact that the entire inspection resources of the HIOs will be eliminated and replaced with Government-selected inspectors.  The Government, therefore, will have to recruit, manage and schedule for participating shows approximately 100 new Government inspectors.  As the Department is currently only able to inspect approximately 6% of HIO-affiliated events, this inspector number would need to be increased accordingly if the Tennessee Walking Horse industry is able to continue its existence as the author of H.R. 1518 claims will be the case. 

Despite claims of rampant abuse, from 1982 to 2012, a thirty (30) year period, there were 34 USDA HPA prosecutions which were appealed to a court of appeals and/or judicial officer.  Under the proposed legislation, the USDA would be responsible for prosecuting all alleged violations identified by USDA certified inspectors.  The USDA’s Program Activity Reports for 2011 indicate 683 violations and in 2012 indicate 582 violations.  Based on the USDA’s reports and the allegation that soring is “rampant” and remains undetected, the USDA will be responsible for the prosecution, and any subsequent appeals, of, at a minimum, hundreds of alleged violations each year.

APHIS has admitted that for the current violations they find from their attendance at 6-8% of the shows they believe that the investigation can be completed within 365 days.  Also, in a filing in the recent lawsuit, and left undisputed by the DOJ, it was estimated the time lapse between the alleged violation and a decision appealed from the Administrative Law Judge to the Judicial Officer was 49 months.  If the accused chose to appeal the Agency decision to an Article III court, the time lapse between the alleged violation and final decision was approximately 70 months.   Just these timeframes alone brings into question the viability of this Whitfield/HSUS program to “end soring” since it could be years until a case is prosecuted – if ever.

All expenses associated with DQP training are currently paid for by the HIOs.  This includes requirements for an all-day training session EACH year for EVERY inspector, additional sessions for those inspectors who could not attend the initial session, a recurrent session of at least 4 hours EACH year for EACH inspector. It also includes a continuation of the Department’s regulatory requirement of APHIS oversight, monitoring and appraisal of the performance of new inspectors, the apprenticeship requirement of all new inspectors for 2 shows and, as the legislation provides a preference for veterinarians, have a ready schedule of extra inspectors due to professional requirements that conflict with show requirements. 

Additionally, regulations require a significant amount of reporting for each show, proper training and actions associated with their enforcement responsibilities and proper consideration and actions related to the provision of due process of law for those charged or ticketed with violating the Horse Protection Act.  And since these new inspectors are federal government employees or subcontractors the security currently required by APHIS will need to be extended to every inspector at every show – not an insignificant cost. All of this while taking into account that the majority of the shows occur on the weekends when most busy professionals want and need personal time with their families.  The cost of all of these items will be the responsibility of the United States government.

The USDA itself has recognized the significant costs associated with the undertakings proposed by this legislation.  During the rulemaking process of adopting the Regulations implementing the industry self-regulation HIO program, the USDA stated the following:

  “[comments] suggested that the DQP program should be operated by the     Department and the applicants should be trained and licensed directly by     the Department.  The Department has neither the personnel nor the funds     to carry out such an extensive undertaking and feels that the DQP program should
remain in the realm of industry self-regulation.”

44 Fed. Reg. 1158, 1160 (emphasis added).
- Additionally, as part of the 2011 rulemaking regarding the adoption of mandatory minimum penalties, the USDA stated the following:

  “The Act provides us with the authority to pursue civil and criminal      penalties against persons who violate the Act.  However, such proceedings     may be time-consuming and expensive, and our resources for prosecuting     such cases are limited.”
76 Fed. Reg. 30864, 30865 (May 27, 2011)(emphasis added).
The Office of the Inspector General’s Audit Report of September 2010 also found the following regarding expenses of HPA enforcement:
- Page 113:  “Given its limited resources – which APHIS regards as inadequate to send its own veterinarians to the approximately 500 horse shows that are held each year – the agency implemented the program by collaborating with horse industry organizations sponsoring the shows.”

- Page 126:  “According to the Horse Protection Act, APHIS employees have the authority to inspect horses and initiate civil proceedings against individuals who are suspected of having abused their horses.  Because these proceedings can be long, expensive, and have unpredictable results, APHIS has structured its enforcement process so that horse industry organizations and DQPs are the primary parties responsible for issuing immediate penalties to individuals for violating the Horse Protection Act.” (emphasis added).

Even without taking on activities associated with the inspection process as contemplated by this legislation, as recently as January 11, 2012, the USDA recognized the time and expense associated with just the investigation and prosecution of alleged violations.  The USDA has already been forced to prioritize its activities based on limited resources while operating under the current HIO program.  (Exhibit G -Jan. 11, 2012, corr. from Gregory L. Parham, USDA Administrator).  For the proponents of the proposed legislation to assert there would be no additional costs incurred by the USDA in undertaking to perform ALL inspections and prosecutions, including those currently performed through the HIO system, is unfounded.
 
Congressman Whitfield also stresses the point that the use of these government inspectors, due to elimination of the DQP Program, is voluntary.  In the Horse Protection Act amendments passed in 1976, Congress recognized that the Department of Agriculture could not manage and did not have the capabilities to inspect all of the walking horse shows.  Congress, therefore, set up the DQP Program.  This legislation eliminates that program, establishes a government-selected and managed program and proposes to pass the inspection costs on to the show manager.  If a show manager, however, chooses NOT to utilize this government inspector, he or she assumes the risk and personal liability of an HPA violation and the associated criminal or civil liability.  We doubt that many show managers, if any, will believe the provisions of H.R. 1518 are “voluntary.”

CONCLUSION:

As we have noted throughout this statement, H.R. 1518 would eliminate approximately 85% of the current Tennessee Walking Horse industry and 85% of the industry’s economic value to the communities and families that make up this industry.   It would result in the unconstitutional taking of over $1.3 billion in property without just compensation through the elimination of the value of these performance horses.  It would result in a negative economic impact of over $3.2 billion and the loss of thousands of jobs in each of the affected areas.  

It would have a significant cost to the Government through the new requirements and tasks that would have to be assumed by the Department of Agriculture.  It violates the intent and spirit of the original Horse Protection Act.  It seeks to prohibit weighted shoes and action devices that have been found to have no harmful effect under current regulation.  It continues an inspection process that is, by definition, unworkable as it utilizes subjective testing and foreign substance policies that are not realistic, defined or scientifically valid.

The Performance Show Horse Association is committed to the elimination of the small minority of people who sore horses for competitive advantage.  As the industry has a 98.5% compliance rate, that number is a small minority.  But this elimination must occur in a common-sense, realistic manner that recognizes the original intent of the Horse Protection Act by maintaining the HIO system, requiring shows to be a part of that system, by instituting scientifically valid testing protocols and inspection methods, by eliminating the conflicts of interest and, in so doing, show these magnificent animals in a competitive, but safe, manner.

Our industry is not perfect and more work remains.  We can say, however, that we have made, and will continue to make, great strides in eliminating the small minority of bad actors in our sport.  No other component of the equine industry can say that.  Our industry did not have 3,000 horses die in the last four years. 

This legislation, if enacted, will destroy the proud and historic Tennessee Walking Horse industry and this Subcommittee, through this and other statements, testimony and reflection will agree with this analysis.  We do, however, remain committed to work with Congress, the Department of Agriculture and APHIS and other reasonable people on realistic common-sense reforms and revisions that eliminates the sore horse, not the show horse. 

Thank you for your time and attention to this Statement and we appreciate your consideration of this material.  We hope that after the consideration of these facts and supporting material, rather than our opponent’s continued uses of misinformation and inflammatory language, you will understand and appreciate the progress we have made.  But we know more needs to be done and we would encourage the Subcommittee to consider the recommendations we have suggested as they represent a common-sense and realistic approach that can make our industry achieve our goal of protecting our horses and saving our industry.

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