Members from the Tennessee and Kentucky Congressional delegation recently sent a letter to Agriculture Secretary Tom Vilsack urging him to allow Congress and not the department, through regulatory action, to address the needed changes to the Horse Protection Act.  Reps. Scott DesJarlais, David Kustoff, Chuck Fleischmann and John Rose from Tennessee and Hal Rogers, Brett Guthrie and James Comer from Kentucky were the signatories on the letter.

The letter addresses three main reasons that the old rule from 2016 should not be pushed forward and printed in the Federal Register as a final rule.  First, the members point out that the action should be addressed by Congress and not the USDA through regulatory action.  The previous Congress made progress on the issue and the members point out the possibility of compromise between the industry and stakeholders from the animal welfare community.

Secondly, the letter points out the “stale” nature of the data used to formulate the rule. The rule was based on the OIG report from 2010 and inspection data from 2010-2015.  The data in the last three years and the data used in the formulation of the rule are vastly different and the USDA’s own data regarding compliance with the HPA has dramatically improved in that timeline.  The letter states, “The courts have said that an agency’s reliance on stale data and the agency’s failure to consider new data in adopting regulations can render them arbitrary and capricious, and thus unlawful under the Administrative Procedures Act.”

The letter also references the recently completed National Academies of Science study that was jointly funded by the USDA and industry that recommended major changes to the current inspection system.  The study explicitly stated that the current “scar rule” is unenforceable as written and is in need of change.  This “scar rule” has been the basis of many of the violations that the USDA used in justifying the need for the rule.  These violations have all been brought into serious question with the finding of the independent study which pointed out the problems with the scar rule.

For the USDA to fund a study and not take into consideration its findings in adopting any new rule would be highly questionable and would surely be one of several bases for thee lawsuit the industry would likely bring should the old rule be published.

Finally, the letter also points out the discriminatory nature of the proposed rule.  The rule would ban the use of pads in the Tennessee Walking Horse, Racking Horse and Spotted Saddle Horse breeds while allowing their use in all other breeds.  This would be discriminatory due to the fact that the HPA applies to all breeds, not just the three breeds addressed in the rule.

The letter states, “The HPA applies to all breeds of horses, and while several other breeds also utilize pads, this ban is discriminatorily only applied to three breeds rather than all.  Again, the courts have ruled that an agency action that treats two similarly situated groups dissimilarly is arbitrary and capricious.”  In addition, the movement in the last Congress on the issue and potential compromise would have brought the equipment utilized by Tennessee Walking Horses in line with that equipment utilized in those other breeds.

To view the complete letter click here.