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USDA Amendment to HPA to Require Minimum Penalties - Updated



By Jeffrey Howard

©Walking Horse Report 2011

The United States Department of Agriculture has published today (May 27, 2011) in the Federal Register a proposal to amend the horse protection regulations to require Horse Industry Organizations (HIO) or associations that license Designated Qualified Persons (DQP) to assess and enforce minimum penalties for violations of the Horse Protection Act and the regulations (click here to view the Federal Register Posting).  The proposal will go for comment and interested parties will have 60 days to comment, which runs until July 26, 2011.
         
The proposed change to the regulations comes in response to the Office of the Inspector General audit report regarding Animal and Plant Health Inspection Service’s (APHIS) administration of the Horse Protection Act.  The audit found that APHIS’ program for inspecting horses for soring is not adequate to ensure that these animals are not being abused.
        
In developing the new minimum penalty protocol, the recommendation says APHIS took into account civil and criminal penalties set forth in the Act, those penalty structures used in previous years, rulings of the Department’s Administrative Law Judges and the Department’s Judicial Officer, and input received from industry stakeholders.
         
Previously in 2010, the USDA issued a mandate to HIOs to adopt a mandatory penalty structure.  Eight of the 12 HIOs that license DQPs agreed to adopt the minimum penalty protocol, however, SHOW, PRIDE, KYHIO and Heart of America did not agree to adopt the penalty structure.
         
Accordingly, the USDA is proposing to remove the reference in 11.21(d) to assessing penalties set forth in the rulebook of the certified program under which the DQP is licensed. Instead, that paragraph would require HIOs to assess and enforce penalties for violations in accordance with a new 11.25, which the USDA is proposing to add to the regulations and which would contain the penalty protocol.
          
The new 11.25 would also include violations that require a suspension to suspend the individuals including, but not limited to the owner, manager, trainer, rider, custodian, and seller, as applicable, who are responsible for showing the horse, exhibiting the horse, entering or allowing the entry of the horse in a show, exhibition, or sale.

On the industry stakeholder call held May 27, 2011 Dr. Chester Gipson, Deputy Administrator stated, "It is important to note that these are nothing new but are clarifications to the authority of the Secretary." 
        
A bilaterally sore violation would require a one year suspension for the first offense, two year suspension for the second offense and four years for the third and all subsequent offenses.  A unilateral violation would require a 60 day suspension for the first offense, 120 days for the second and one year for the third and all subsequent.
          
A scar rule violation would require a two week suspension for the first offense, 60 days for the second offense and one year for the third and all subsequent violations.  Bilateral, unilateral and scar rule violations will also disqualify the horse for the remainder of the show.
          
Foreign substance violations that are found pre-show will result in the disqualification of the horse for the remainder of the show.  Post-show foreign substance violations will result in a 14 day suspension and disqualify the horse for the remainder of the show.  Equipment violations will follow directly the penalties for the foreign substances.
       
Shoeing violations, including heel-toe ratio, will result in the horse being dismissed from the remainder of the shoe, whether found pre-show or post-show.  Unruly or fractious horses will be dismissed from the class but can return in future classes at that show for inspection. 

In the proposed amendment, all suspensions will be served consecutively and not concurrently.  The amendment would include a hearing process to be instituted and any violation of the suspension would result in an additional six month suspension.
        
The USDA also references a future document under development that will propose additional changes to the regulations consistent with the OIG audit report.  The USDA states they expect these changes and the ones in the forthcoming document to enable the Horse Protection program to successfully eliminate soring.  However they warn if they do not, they will “seriously consider taking substantially more restrictive action, including, but not limited to, prohibiting the use of all action devices and pads.”

To comment on the proposed amendment you can either:
*Federal eRulemaking Portal: Go to http://www.regulations.gov/#!submitComment;D=APHIS-2011-0030-0001 to submit or view comments and to view supporting and related materials available electronically.

*Postal Mail/Commercial Delivery: Please send one copy of your comment to Docket No. APHIS-2011-0030, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2011-0030.

To view the official USDA-APHIS Press Release click here.

To view the Reg Map (Steps for informal rulemaking) click here.

To view a PDF of the Proposed Rule in the Federal Register click here.

 

 

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