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TWHBEA Files Response To Request For Comment



The Tennessee Walking Horse Breeders’ & Exhibitors’ Association (TWHBEA) has filed its response to the request for comment with the United States Department of Agriculture.  The USDA posted its notice in the Federal Register regarding the petition for rulemaking and the official comment period runs through June 13, 2011.  Anyone can file comments, including individuals.

The TWHBEA Executive Committee voted yesterday, May 2, 2011, to file and release the following response drafted by Tom Kakassy and others from TWHBEA.  TWHBEA also decided to file its response individually and not in conjunction with other industry associations.  TWHBEA feels strongly it should make clear its position as the official breed registry yet welcomes other associations and individuals to review its response and use it to formulate their own response or comments.

The original petition for rulemaking was filed by the Humane Society of the United States, the American Society for the Prevention of Cruelty to Animals, the American Horse Protection Association, Inc., Friends of Sound Horses, Inc. (FOSH) and former Senator Joseph D. Tydings.

Below is the official TWHBEA response:

BEFORE THE
UNITED STATES DEPARTMENT OF AGRICULTURE
ANIMAL AND PLANT HEALTH INSPECTION SERVICE

 

Response of the Tennessee Walking Horse Breeders and Exhibitors Association
To Petition for Rulemaking

 

 

 

Filed By:
Thomas B. Kakassy
Thomas B. Kakassy, PA
PO Box 2436
Gastonia, NC 28053
NC State Bar No. 9297
Telephone: 704 867 1795
Fax No. 704 867 1820
thomaskakassy@carolina.rr.com
Table of Contents

Introduction ………………………………………………………………………………….3
Interest of the Respondent …………………………………………………………….……..3
Statistical and Scientific Bases for Petitioner’s Claims………………………………………4
Discussion of Rulemaking Proposals: ……………………………………………………….8
1. Petitioner’s request for “permanent disqualification of scarred horses” ignores the science and the plain language and history of the Act, and is in fact an apparent attempt to stop the showing of padded performance horses. …………………….8
2. The imposition of required minimum penalties and permanent disqualifications would be counterproductive, counter to the intention of the Act, and an excessive use of authority.. ………………………………………………………………….….9
3. Petitioner’s requests for the incorporation of points of emphasis are in part moot and are in part without justification or scientific basis. …………………………..10
4. TWHBEA recommends that USDA engage in scientific study and a cooperative effort with the industry in order to gain additional knowledge and to more efficiently enforce the Act, a goal supported by the overwhelming number of horse enthusiasts.  ………………………………………………………………………….11
Conclusion ……………………………………………………………………………………12

 

 

Introduction

The Tennessee Walking Horse Breeders and Exhibitors Association (hereinafter TWHBEA) is uniquely positioned as amicus in matters related to the exhibition and regulation of the performance Walking Horse. It derives no revenues from the promotion of any issue related to the Petition, except inasmuch as legislation and practice which enhances the value and well-being of the animal enhances the objectives of the Association as well. It has no stake in the success of any HIO at the expense of any other. TWHBEA derives  no income from the training of horses, much less from one particular training technique as opposed to another.  Finally, it is a 501 (c) (5) organization dedicated to all of the many disciplines and uses of the Walking Horse, and conversely dedicated to the defense of any discipline under unfair attack. This Response points out areas of agreement with the position of the Petitioner, areas of disagreement, and areas in which basic facts and premises vital to Petitioner’s argument are without any logical or factual basis. It does so with an ultimate goal identical to that of the Horse Protection Act: the prohibition of soring in public venues. 

Interest of the Respondent

The Tennessee Walking Horse Breeders’ and Exhibitors’ Association (TWHBEA), headquartered in Lewisburg, Tennessee, is the oldest and most prestigious organization devoted to the promotion of the breed. Founded in 1935, the breed registry was established to record the pedigrees of the Tennessee Walking Horse. Its goal is to maintain the purity of the breed, to promote greater awareness of the Tennessee Walking Horse and its qualities, to encourage expansion of the breed, and to help assure its general welfare.

There are more than 500,000 registered Tennessee Walking Horses throughout the world. TWHBEA protects the investment of Tennessee Walking Horse owners by establishing policies and requirements, and maintaining the breed registry. A 14-person Executive Board, selected from the International Board of Directors representing members in all 50 states and several foreign countries, plays the key role is establishing these policies. The success and popularity of the Tennessee Walking Horse is the result of thoughtful organization and strong leadership by the Tennessee Walking Horse Breeders’ and Exhibitors’ Association, and it is the essential organization for the continued success of the breed. The Association, and this Brief, promote the interests of approximately 10,000 individuals.

The TWHBEA International Board of Directors is dedicated to the sound horse. As declared in its mission statement, bylaws, position statement and web site, it does not support practices in violation of the Horse Protection Act in the development and training of the horse. The TWHBEA International Board of Directors supports the sound and compliant horse in every one of the breed’s numerous disciplines.

Statistical and Scientific Bases for Petitioner’s Claims

While the Petition for Rulemaking indiscriminately lumps together what it calls “HPA violations” in its arguments, citations are issued, as the Department knows, for many technical violations unrelated to bilateral sensitivity.  Petitioner’s arguments do not appear to in any way be addressed to instances of foreign substance, illegal chains, equipment violation, bad image horse, not reporting to DQP, suspension violation, or “NHSC point exam”, which comprise 7.3 % of all violations . Added to unilateral sensitivity violations, this excluded percentage rises to 36.4%.To date, and to the best information available to TWHBEA, statistics show as follows: 

Number of inspected horses found bilaterally sore to date:    1396

2007:
All inspections conducted by any HIO or authorized entity in 2007: 109,008
All sustained violations for bilateral sensitivity in 2007:     27
Percentage of inspected horses found bilaterally sore in 2007:   .00025%

2008:
All inspections conducted by any HIO or authorized entity in 2008: 111,932
All sustained violations for bilateral sensitivity in 2008:     43
Percentage of inspected horses found bilaterally sore in 2008:  .00038%

2009:
All inspections conducted by any HIO or authorized entity in 2009: 70,122
All sustained violations for bilateral sensitivity in 2009:     70
Percentage of inspected horses found bilaterally sore in 2009:  .00099%

2010:
All inspections conducted by any HIO or authorized entity in 2010: 72,114
All sustained violations for bilateral sensitivity in 2010:     92
Percentage of inspected horses found bilaterally sore in 2010:  .0012757%

2011:
All inspections conducted by any HIO or authorized entity in 2011 to date: 5374
All sustained violations for bilateral sensitivity in 2011:  9
Percentage of inspected horses found bilaterally sore in 2011:  .00017%

Totals:
Total inspections conducted by any HIO or authorized entity for reported years: 368,550
Total—bilateral sensitivity: 241
Percentage of all inspected horses found bilaterally sore—reported years: .0006%

Respondent takes issue with the factual bases for the following premises and statements found in the Petition:

References to “soring scars”  without further definition of this new term or distinction from “bilateral areas of uniformly thickened epithelial tissue if such areas are free of proliferating granuloma tissue, irritation, moisture, edema, or other evidence of inflammation” , allowed under HPA;

References to “widely practiced” “insidious practices” without further reference;

Incorporation of deceptive quotations; 

The statement that “Scarring of the pasterns is considered irrefutable evidence of soring”. 

References to CFR provisions which do not contain the cited material; 

Web sites created by individuals used as citations to support factual assertions made; 

Petitioner’s use of its own employees’ “declarations” as evidence;  

Entire pages of factual assertions without any factual reference or footnote whatsoever, and statements which are simply untrue. ;
The statement that “The fact that scarred horses are repeatedly shown and dismissed from shows irrefutably demonstrates that illegal soring continues in the Walking Horse Industry”, with no reference to any causal link or other information;

Adulteration of quotations.
 
DISCUSSION OF RULEMAKING PROPOSALS

1. Petitioner’s request for “permanent disqualification of scarred horses” ignores the science and the plain language and history of the Act, and is in fact an apparent attempt to stop the showing of padded performance horses.

Having drawn a link which has no basis in science between the buildup of callus tissue and what it calls “soring scars”, and having exaggerated the incidences of cheating behavior in the industry, Petitioner then suggests that one turndown on the basis of the so-called “scar rule” should disqualify any show horse for all time.  As SHOW’s response notes,  this approach was considered and rejected, in no small part because callus tissue can be reduced “with proper care, rest and time”, in the same manner that proper care of a callus on the human foot can do so. Indeed, the Act allows for an amount of “uniformly thickened epithelial tissue” in recognition of the fact that friction in the pastern area, in this show horse as well as in many or all other extended-gait  performance breeds, will produce this natural reaction and protection. SHOW also notes the wide range of variation in interpretations of the scar rule, not so much as between USDA and DQPs as between USDA inspectors themselves.   Ending the career (and perhaps the life) of a valuable show animal on the basis of such subjectivity thwarts not only due process, but the very purpose of the Act. Moreover, as SHOW points out, requiring the participation of HIOs in this endeavor may well make them “state actors”, implicating USDA in the consequent deprivation of property rights of horse owners.    This respondent cannot accept petitioner’s suggestion as being put forth in good faith, as it appears directed toward the abolition of the discipline, as opposed to suggested effective regulation of bad practices. 

2. The imposition of required minimum penalties and permanent disqualifications would be counterproductive, counter to the intention of the Act, and an excessive use of authority.

Strangely, Petition argues that USDA’s failure to impose mandatory minimum penalties is “arguably illegal” —and then quotes the HPA provision allowing the Secretary discretion to promulgate such rules “as he deems necessary to carry out the provisions of the Act”.  There is no other rationale given for this hyperbolic and illogical suggestion.   Petitioner’s suggestion to force mandatory penalties would require the amendment of the Regulations to make this so, as well, as 9 CFR 11.21 plainly allows HIOs to adopt their own penalties. Clearly, the present and permissible remedy for what USDA considers to be an ineffective HIO is decertification.   SHOW points up the utter failure to comport with due process, the right to confrontation, and the rights to jury trial which such a short-circuit of normal fact-finding and appeal processes would entail.  Finally, and perhaps most devastating, the imposition of practically impossible regulations and career-ending disqualifications will or would lead to the abandonment of the HIO structure by all, the abandonment of qualified inspections, and—again perhaps the goal of Petitioner—the abandonment of a discipline which has been shown, again and again and again, to be humane and productive of a great show animal.

3. Petitioner’s requests for the incorporation of points of emphasis are in part moot and are in part without justification or scientific basis.
As with many rules which have evolved through the years, HIOs and the industry have adapted and are already employing some of the suggested rules. Horses are not to show back at the same event after disqualification, and there is no evidence that they are. Regulations regarding recordkeeping, and penalties for the failure to do so, are already in place. Horses dismissed from the ring are then inspected. The Act and regulations are already replete with prohibitions against inserted materials designed to cause soring. The prohibitions against participation while suspended are already in the Regulations and penalties for violations are described in the Act itself. Petitioners show a shocking lack of familiarity with that which they attempt, respectively, to duplicate, supersede, and contradict.  

TWHBEA takes no position regarding the correlation between coffin bone rotation and the Act, but defers to SHOW’s discussion of the topic and the science, contained in its brief at pp. 36-37. It does wish to emphasize the near impossibility of conducting this additional test in the field, with such drastic consequences, and while horse shows attempt to proceed. 

Respondents do agree with the principle that each HIO should honor the suspensions levied by the other, and questions whether and to what extent this accepted practice is actually being violated. However, this mutual respect for suspensions should continue to be (and to the knowledge of the respondent is) the product of a voluntary agreement among HIOs dedicated to the abolition of unfair and illegal practices. 

4. TWHBEA recommends that USDA engage in scientific study and a cooperative effort with the industry in order to gain additional knowledge and to more efficiently enforce the Act, a goal supported by the overwhelming number of horse enthusiasts. 

While TWHBEA applauds the efforts of USDA to work with industry representatives in understanding and modifying training techniques, it also asks that USDA recognize the industry’s greatest asset: the owners, trainers, and breeders dedicated to fair competition between sound horses. TWHBEA stands ready to help coordinate studies intended to effectuate the purpose of the Horse Protection Act. For example, Dr. Ram Purohit, DVM,MS, PhD,   author of the “Auburn studies” and relied upon by USDA and the industry in developing humane devices and practices some thirty years ago, remains ready to continue those studies.  An exploration of the relationship between callus tissue in the pastern area, for example, and its causation, would be most useful in the uniform application of inspections and in addressing concepts such as that of the “permanently scarred “ horse, an animal apparently constructed of whole cloth by Petitioners in their application. In developing uniform, fair, and objective standards, TWHBEA’s objectives are exactly the same as those which should be sought by USDA. 


CONCLUSION

After some thirty pages of largely undocumented allegations against SHOW and other HIOs, Petitioners’ brief contains, in a footnote at the bottom of page 26, a reference to SHOW, an entity in existence for less than two years, as having “recently taken initial steps committing to compliance and enhanced enforcement”.    This grudging and backhanded recognition of the enormous progress made by the Walking Horse industry is swallowed up in HSUS’ effort to sensationalize the issue in a brief which, as SHOW states, would be sanctionable in a court of law. USDA should base no action on such a shoddy product. Although it runs contrary to HSUS’ financial interests, it would do well to recognize that, in the last five years, less than six horses out of every ten thousand have been found to be “sore”.

None of the stakeholders should be adversaries, as all share the same objectives.  USDA could do better to develop uniform  inspection standards, with the assistance of TWHBEA and industry leaders, which are more truly regulatory than punitive, which inspire confidence in and respect for the inspection process, and which allow the performance walking horse and its custodians to thrive in accordance with the intention of the Horse Protection Act.  TWHBEA stands ready to help.

Click here to view a .PDF file of the response with footnotes and references included.

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