APHIS DOCKET NO. 2011-0006










                                                                                    Walking Horse Trainer’s Association, Inc.
       Fax:  931/684-5895    Date:  June 10, 2011 


As a sign of its commitment to compliance with the Horse Protections Act (“HPA”) in 2009, the Walking Horse Trainers’ Association, Inc. (hereinafter “WHTA”) Board of Directors voted unanimously to dissolve the National Horse Show Commission, a Horse Industry Organization (“HIO”) which had been in existence and controlled, in-part, by the WHTA since 1989.  The board of the WHTA asked the Tennessee Walking Horse Celebration to activate its HIO, SHOW, Inc., and to assume all duties of HIO enforcement of the HPA thereby removing all potential conflicts of interest, whether perceived or real, associated with self-regulation.  Since 2009, the WHTA has had no involvement in enforcement of the HPA, but instead, its members are those who are subject to regulation under the HPA each time a member presents a horse for inspection pursuant to the terms of the Act, its corresponding regulations and the rulebook of the HIO.
The WHTA is proud of the strides the TWH industry has made in recent years in presenting horse compliant with the HPA and its regulations.  Despite the misinformation contained in the Petition for Rulemaking, USDA statistics prove the fact that, while not perfect, the current HIO system is working and the sore horse is quickly becoming a thing of the past.  As recently as the May 2011 Fun Show held in Shelbyville, Tennessee – a three-day event at which USDA inspectors were present for all events – no USDA inspector found a single instance of a violation of the Act, which had not been previously detected by industry inspectors (i.e. Designated Qualified Persons or “DQPs”).  Additionally, the compliance rate for all three (3) nights of this event – with USDA inspectors present – was 92.2%. 
The WHTA is also taking proactive steps to enhance professionalism and compliance with the HPA and regs.  Most recently, the WHTA received a grant for a new program to enable the association to issue photo identification to each of its members to ensure correct, reliable information is presented at all times by its members.  Additionally, over the past year, the WHTA has worked with SHOW HIO to establish new judging criteria and standards, which include penalties for any judge who fails to dismiss a nonstandard horse from the show ring.  
The WHTA files the following in response to the Animal and Plant Health Inspection Service’s (hereinafter “APHIS”) request for review and comment to the Petition for Rulemaking filed on behalf of The Humane Society of the United States, The American Society for the Prevention of the Cruelty to Animals, the American Horse Protection Association, Inc., Friends of the Sound Horse, Inc., and Senator Joseph D. Tydings on or about August 4, 2010.  See 76 Fed. Reg. 20569 (April 13, 2011).  An additional, more comprehensive response will be provided to APHIS’s proposal to amend the horse protection regulations as published in the Federal Register on May 27, 2011, on or before the July 26, 2011, deadline.  
Petitioners have used their Petition for Rulemaking as a platform from which to hurl unsupported, defamatory statements at the entire Tennessee Walking Horse (“TWH”) Industry and all organizations involved therein.  Petitioners have attempted to paint all individuals involved in the TWH industry as criminals whose daily activities include the abuse of this great breed of horse.  Petitioners’ inaccurate, misleading and unfounded statements simply cannot form the basis for rulemaking.  Furthermore, an analysis of Petitioners’ proposed rule changes makes it clear that Petitioners have no interest in protecting the best interest of the horse, much less protecting the constitutional rights of the individuals involved in the TWH industry.  The regulatory system proposed by Petitioners would not effectuate the purposes of the Horse Protection Act but would, in fact, increase the potential incidents of “soring”.  
Instead of acknowledging the strides made by the legitimate TWH industry as a whole and working with those individuals committed to HPA compliance, Petitioners have, instead, chosen to present inaccurate information presumably in an effort to incite a reaction to further their own agendas.  If Petitioners truly have the best interest of the TWH at heart, their current course of action is misguided at best.  

Respondent Walking Horse Trainers’ Association, Inc. (“WHTA”) is a corporation existing under the laws of the State of Tennessee with its principle place of business in Shelbyville, Tennessee.  The WHTA was established in 1968 for the purpose of promoting and developing activities on behalf of and in the interest of the Tennessee Walking Horse and those individuals employed in the Tennessee Walking Horse industry – specifically, individuals whose chosen profession was as a Tennessee Walking Horse trainer.
Each member of the WHTA accepts and abides by a Code of Ethics, which includes that he or she will “[t]reat all horses in their care humanely, and with dignity and respect.”  Each WHTA member vows to, among other things, “not utilize techniques known to inflict pain for the purposes of performance enhancement.”  The WHTA currently has approximately 650 members and offers support to many worthwhile projects including the WHTA scholarship fund, the WHTA Youth Council and WHTA Auxiliary.  Each member of the WHTA  receives his primary source of compensation through his or her employment in the TWH industry.
Members of the WHTA are those individuals most directly affected by the enforcement of the HPA and its regulations as they rely on the exhibition, show and sale of TWH for their livelihood. 
As stated hereinabove, the WHTA is not involved in enforcement of the HPA and/or its regulations.  Members of the WHTA are, in fact, among the individuals and entities regulated by the Act and regs.  As such, many of the requested changes are beyond this Respondent’s scope of control.  Consequently, Respondent WHTA will address hereinafter those issues raised in the Petition for Rulemaking, which are in direct contravention of constitutional and/or statutory law.  
The Petition for Rulemaking asks the USDA for the following immediate changes:

1. Permanently disqualify scarred horses from participating in all horse showing activities;

2. Require HIOs to adopt a minimum penalty structure for HPA violations;

3. Incorporate certain Points of Emphasis into the Horse Protection Regulations;

4. Permanently disqualify individuals who have repeatedly violated the Act from participating in all horse showing activities; and

5. Decertify HIOs after their failure or refusal to correct instances of non-compliance.”

Pet. For Rulemaking at p.8.
Under 5 U.S.C. § 706 of the Administrative Procedures Act, any agency action may be found to be unlawful and set aside if such action is determined to be:

(A) arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F)  unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

As addressed hereinafter, many of the actions requested by Petitioners do not conform to the requirements of 5 U.S.C. § 706 and would, therefore, necessarily be set aside as unlawful. 


As reflected in the Federal Register, APHIS has agreed with the position of certain HIOs       
  “[t]he HPA does not provide APHIS with the authority to implement certain    requests in the petition.  Specifically, APHIS does not have the authority under the HPA to permanently disqualify horses that have been scarred from soring from competitions . . . .”
76 Fed. Reg. 20570 (emphasis added).  Based upon this stipulation, no discussion of permanent disqualification of “scarred” horses is necessary at this time. 


Imposition of mandatory government penalties by an HIO would implicate the HIO as a state actor and thereby require that due process be provided before any such “mandatory penalty” could be enforced.  An HIO is a non-governmental entity, which cannot, under law, deprive an individual of his property without due process of law.  
The USDA would likely be held liable for the actions of HIOs in the imposition of such penalties and any corresponding deprivation of rights of the individuals affected.  A governmental entity may be held liable for the actions of a private organization if (1) “the State creates the legal framework governing the conduct”; (2) if it delegates its authority to the private sector”; or (3) “if it knowingly accepts the benefits derived from unconstitutional benefits derived from the unconstitutional behavior.”   Nat. Collegiate Athletic Assc. v. Tarkanian, 488 U.S. 179, 192 (1988).  Private parties may also be “found to be state actors if they were ‘jointly engaged with state officials in the challenged action’” or there existed a “sufficiently close nexus between the State and the challenged action of the regulated entity.”  Id. at 192, 200.  “In determining whether an ostensibly private organization is a state actor for purposes of the Federal Constitutions’ Fourteenth Amendment, public entwinement in the organization’s management and control will support a conclusion that the organization ought to be charged with a public character and judged by constitutional standards.”  Brentwood Academy v. Tennessee Secondary School Athletic Assc., 531 U.S. 288 (2001).
The Agency’s attempt to “entwine” itself in the activities of private organizations through the imposition of mandatory penalties would be “contrary to constitutional right, power, privilege or immunity” under 5 U.S.C. § 706(2)(B) and would, therefore, be set aside.
The imposition of any mandatory penalty by the USDA through an HIO cannot be upheld.  Section 1825 of the Act specifically sets out the criminal and civil penalties, which may be levied if an individual is found to be in violation of the Act.  
Section 1825(b) of the Act sets out the civil penalties, which may be assessed for violations of the Act and its regulations.  Section 1825(b) specifically states
“No penalty shall be assessed unless such person is given notice and opportunity for a hearing before the Secretary with respect to such violation”(emphasis added).

Section 1825(b) goes on to delineate the factors the Secretary must consider in assessing a penalty as well as the appeal process to “the court of appeals of the United States.”  Id.
Clearly, pursuant to the express terms of the HPA, the Department cannot impose any penalty “unless such person is given notice and opportunity for hearing before the Secretary” and afforded an appeal to “the court of appeals of the United States.”  Id.  This unequivocal language does not give the Secretary the authority to impose its penalties through any other means – including, but not limited to, through a private organization such as an HIO. 
Petitioners are surely aware that the Sixth Amendment provides for, among other things, the fundamental right to a trial by jury in criminal matters in order to prevent oppression by the government.  See Duncan v. State of Louisiana, 391 U.S. 145 (1968).  There simply can be no argument that a private organization, such as an HIO, is capable of providing the due process rights associated with the potential imposition of criminal penalties.
Any attempt by the Secretary to impose a “mandatory penalty” through the HIO system would be in excess of the express authority authorized to the Secretary by statute, and therefore, unenforceable.  See 5 U.S.C. § 706(2)(C)(finding unlawful any agency action “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right”).
This issue has been addressed in the current HPR, which states:
  The certified DQP organization shall assess appropriate penalties for
  violations, as set forth in the rulebook of the certified program under
  which the DQP is licensed, or as set forth by the Department, and shall
  report all violations in accordance with Sec. 11.20(b)(3) of this part.
9 C.F.R. § 11.21 (emphasis added).
Webster’s Dictionary defines “or” as a “coordinating conjunction introducing . . . an alternative.”  The clear language of the HPR 11.21 does not make any penalty issued by an HIO mandatory.  The express language of this Section is to require the HIO to assess the penalty as set forth in its Rulebook.  It does NOT require an HIO to issue an HPA penalty as mandated by the USDA which comports with the express language of the HPA which allows for imposition of a USDA penalty ONLY AFTER “opportunity for a hearing before the Secretary with respect to such violation.”  15 U.S.C. § 1825(b).  
Furthermore, as discussed hereinabove, an attempt by the USDA to impose “mandatory penalties” through the HIO system would result in said HIOs being considered “state actors” compelled to comply with due process requirements.  Consequently, the USDA would be liable for the actions of the HIOs as there would exist a sufficiently “close nexus” and “entwinement” to compromise “the independence of the enforcing officer.”  See Lugar v. Edmondsom Oil Co., Inc., et al., 457 U.S. 922 (1982).
The imposition of a “mandatory penalty” scheme would also subject individuals to the threat of double jeopardy.  Under the Act, regulations and current case law, the Department has the authority to file a federal case even if an individual has served a HIO mandated penalty.  See McConnell v. USDA, 2006 WL 2430314 (C.A. 6); Derickson v. USDA, 546 F.3d 335 (6th Cir. 2008). 


The mandatory penalty structure, which Petitioners now propose, would not effectuate the purposes of the Act – the elimination of soring.  In fact, just the opposite could occur if mandatory penalties were to be imposed.  Soring could actually INCREASE under the scenario proposed by the Petitioners.
First, the HIOs, such as SHOW, who are actually effectuating the purpose of the Act through fair and consistent process, would, for all practical purposes, be destroyed.  If the USDA requires mandatory penalties and the other items they are proposing as stated in the APHIS response to the OIG Audit, the HIOs would have no other independent responsibility other than to assign DQPs. This would be more than a close nexus under case law – the HIOs would be agents or subcontractors of the USDA itself. Therefore, owners and trainers would automatically gravitate to the HIOs who are involved in lax and/or ineffective enforcement of the Act and their Rules in order to avoid receiving tickets, which would result in the imposition of a “mandatory penalty.”  Trainers and owners and especially non-compliant trainers and owners would have no incentive to affiliate their events with HIOs who fairly and consistently follow the Act and its regulations.  As a result, those HIOs who are actually doing their job through fair and consistent enforcement of their Rules would be penalized and likely driven out of existence. 
Secondly, Petitioners have wholly ignored the existence of an entire segment of the industry, which participates at non-affiliated events sometimes referred to as “outlaw shows.”  At these “outlaw shows” there is absolutely no inspection process as required by the HPA and its regulations.  By failing, or refusing, to have mandatory inspections as required by HPA and its regulations, management of these shows is, by definition, in violation of the Act and Regs.  See 15 U.S.C. § 1824.  These shows number in the hundreds each year with thousands of horses shown with little to no inspection process.   
The USDA has been aware of the existence of the “outlaw shows” for years but has wholly failed to address their existence or the undetected, undocumented violations, which occur at these shows.  In 2002, the USDA recognized that it needed to “devote its limited resources toward increasing its inspections at shows that are not affiliated with an HIO.”  See Am. Horse Protection Assc. v. USDA, Civil Action No. 01-00028 (D.C. July 9, 2002).  However, since 2002, to this Respondent’s knowledge, the USDA has attended no unaffiliated or “outlaw” shows prior to this year.  Additionally, to this Respondents knowledge, the USDA has never pursued a case against the management of one of these unaffiliated/outlaw shows despite management’s refusal to comply with 15 U.S.C. § 1824. 
The weakening of HIOs which are committed to consistent enforcement of the HPA and its Regs, and increasing the number of participants at unaffiliated/outlaw shows through the imposition of “mandatory penalties” would not effectuate the stated purpose of the Act – the elimination of soring.  Consequently, the adoption of the proposed penalty scheme would not give effect to Congress’ express intention, and therefore, could not be upheld.  See Chevron U.S.A., Inc. v. Nat. Resources Defense Council, 467 U.S. 837 (1984)(holding that if Congress has clearly spoken on the issue, that intention is law and must be given effect). 

Petitioners have also asked the Department to institute rulemaking for the purpose of incorporating the 2010 Points of Emphasis into the HPRs.  Pet. for Rulemaking at p. 23.  It is this Respondent’s understanding that many of the POEs which do not conflict with constitutional or statutory law have already been implemented by SHOW HIO and are currently being enforced.  However, some of the POE violate constitutional and/or statutory authority or are contrary to accepted principles of veterinary science, and therefore, cannot legally be incorporated into HPA enforcement. 

 1.  No Scientific Evidence Supports Allegation that 5 Degree Rotation of Coffin Bone should be Considered “Sore”

Petitioners next request rulemaking to codify that a five (5) degree rotation of a horse’s coffin bone should be considered “sore” and a violation of the HPA/HPR.  However, Petitioners offer absolutely no evidence to support their allegation that a five (5) degree coffin bone rotation should be a HPA/HPR violation.  Petitioners have offered no evidence whatsoever, much less evidence, which would meet the requirements of Daubert and its progeny, to support their request.
To the contrary, studies, which comply with the Daubert standard, indicate that such a request is unjustified.  See Kumho Tire Co., 119 S.Ct. 1167, 1175 (delineating Daubert requirements for scientific evidence to be (1) tested; (2) subjected to peer review and publication; (3) known or potential rate of error; (4) existence of maintenance standards and controls; and (5) accepted within the scientific community). 

In discussions with several equine practitioners from some large equine hospitals and universities, their opinion is that there is no reason a horse should be called noncompliant for any degree of coffin bone rotation without other clinical symptoms, which are outlined in the HPA. The USDA supports their stance on a paper that is 28 years old. This paper states that there is a direct correlation between the ability of a horse to return to athletic competition and the degree of rotation of the coffin bone.  However, according to the above referenced veterinarians, there has been dramatic improvement in “our ability to treat horses with laminitis and return to athletic soundness.”  In the last 28 years, “[a] horse that is suffering from acute laminitis or from an acute flare up of chronic laminitis will be lame and therefore unable to be shown.  Horses that have chronic non active laminitis can be managed and shown successfully for years.” 

The very same veterinarians, in addition, the concept that a horse with 5 degree rotation is a “sore” horse is unwarranted and not based upon scientific evidence. There is no correlation, scientific or otherwise, between horses that have been sored and laminitis.  There have been no standardized measurements established for normal gaited horses that are shod in compliance with USDA (Horse Protection Act) standards. There is no breed standard established. The HPA clearly states if a horse leads in a free and easy manner and palpates normally on the pastern area, this horse is compliant and should not be excused from any competition. Also, in order to accurately diagnose coffin bone rotation, perfect radiographs would have to be taken. This is virtually impossible in the field, much less in the inspection area at any horse show.

Finally, information would need to be solicited by all breeds on this particular request which Respondent is sure will suggest that many other breeds have five degree coffin bone rotation that is not deemed harmful to or a violation of any of their respective rules.

 2. USDA has Authority to Institute a Federal Case at Any Time Based on Findings of VMOs, But has No Authority to Dictate HIO Penalties

Petitioners also request rulemaking to require that if a USDA representative finds a horse in violation of the HPA/HPR after a DQP has inspected the horse, all individuals who participated in the entry and/or showing of that horse will be subject to a federal case.  Obviously, Petitioners have failed to acknowledge 15 U.S.C § 1825, which gives the USDA the exclusive right to assess penalties under the HPA and its regulations.  This right has been acknowledged and upheld by various United States Courts of Appeal.  See Derickson v. USDA, 546 F.3d 335 (6th Cir. 2008); McConnell v. USDA, 198 Fed. Appx. 417 (6th Cir. 2006).  Consequently, no rulemaking is required to accomplish the USDA’s ability to institute a federal case against alleged violator.
Additionally, Petitioners request that HIOs be required to apply the applicable penalty to the owner and trainer as well as any applicable disqualifications of the horse.  Id. Further, Petitioners request that an HIO be required to “apply the appropriate penalty through the HIO” after a DQP is informed of a USDA representative’s finding.”  Id.  As discussed hereinabove, the USDA has absolutely no authority to institute mandatory penalties for HIOs and such action would constitute “state action” by an HIO and would be contrary to an alleged violator’s constitutional rights.  See Sections VI.A. and VI.B. herein above.

In paragraphs 5(b) and (c) of Exhibit D-1, Petitioners seek rulemaking which far exceeds the USDA’s authority under the Act.  Specifically, Petitioners seek rulemaking that 

b. Violators are disqualified or suspended from showing, exhibiting, or entering any horse directly or indirectly through any agent, employee, family member, corporation, partnership, or other device, and from judging, managing, or otherwise participating in any horse show, horse exhibition, or horse sale or auction, directly or indirectly through any agent, employee, family member, corporation, partnership, or other device.

c. “Participating” means engaging in any activity beyond the activities of spectator, and includes, without limitation” (a) transporting or arranging for the transportation of horses to or from any horse show, horse exhibition, horse sale, or horse auction; (b) personally giving instructions to exhibitors; (c) being present in the warm-up areas, inspection areas or the areas where spectators are not allowed at any horse show, horse exhibition, horse sale or auction; and (d) financing the participation of others in any horse show, horse exhibition, horse sale, or horse auction.”  

Exhibit D-1, ¶5(b), 5(c) to Pet. for Rulemaking.
What Petitioners have failed to acknowledge is that Congress spoke directly to the issue of the activities of individuals serving a suspension in Section 1825(c) of the Act which states:
  “. . . any person convicted . . . under this chapter may be disqualified by order of the Secretary, from showing or exhibiting any horse, judging or managing any horse show, horse exhibition, or horse sale or auction for a period of not less than one year for the first violation and not less than five years for any subsequent violation.  Any person who knowingly fails to obey an order of disqualification shall be subject to a civil penalty of not more than $3,000 for each violation.
15 U.S.C. § 1825(c)(emphasis added).

Consequently, Congress has expressly spoken to what a person convicted of a violation of the Act may, and may not, do while under an Order of suspension from the Secretary.  Petitioners’ suggested rulemaking on this issue is an attempt to extend the Department’s authority beyond that which was authorized by Congress.  
Under the Act, the Secretary already possesses the authority to suspend a convicted individual “from showing or exhibiting any horse, judging or managing any horse show, horse exhibition, or horse sale or auction.”  Id.  Additionally, if the Secretary finds that an individual serving a suspension “knowingly fails to obey an order of disqualification” the Secretary has the authority to seek additional penalties of “not more than $3,000 for each violation.”
Petitioners’ request for rulemaking contained in paragraphs 5(b) and 5(c) of Exhibit D-2 to its Petition is clearly an attempt to extend the authority of the USDA beyond the express intent of Congress.  Consequently, under 5 U.S.C. § 706, the proposed rulemaking would fail as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and as “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”  5 U.S.C. § 706(2)(A), (2)(C). 

Petitioners’ final request for rulemaking contained within Exhibit D-2 is that “[m]ultiple or subsequent violations that incur suspension penalties must be served consecutively, according to the minimum penalty structure.”  See Ex. D-2, ¶8 to Pet. for Rulemaking.  As set out in Section VI.A. and VI.B. hereinabove, the imposition of  any mandatory penalty structure by the USDA to the HIOs is unconstitutional, unlawful and in excess of the USDA’s statutory authority under the Act. 

Respondent WHTA reincorporates the arguments and legal authority cited in the preceding Sections hereinabove as if set out in their entirety herein.  

Petitioners next request the USDA “promulgate a regulation requiring permanent disqualification of any individual or organization that has been assessed more than three violations of the Act.”  Pet. for Rulemaking at p.24.  As set out in Section VI.A. and VI.B. hereinabove, the imposition of  any mandatory penalty structure by the USDA to the HIOs is unconstitutional, unlawful and in excess of the USDA’s statutory authority under the Act.  Respondent WHTA reincorporates the arguments and legal authority cited in the preceding Sections hereinabove as if set out in their entirety herein.  
Although Petitioners seem to have no apparent problem with treading on an individual’s Constitutional Rights in any variety of ways, “[i]t is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex and condition.  This right may in many respects be considered as a distinguishing feature of our republican institution.  All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution.  The interest, or as it is sometimes termed, the estate acquired in them, that is, the right to continue their prosecution, is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken.”  Dent v. West Virginia, 129 U.S. 114, 121 (1889).  “It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity . . . .”  Phillips v. Vandygriff, 711 F.2d at 1217, 1222 (5th Cir. 1983).  “The right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes with the ‘liberty’ and ‘property’ concepts of the Fifth Amendment. . . .”  Board of Regents v. Roth, 408 U.S. 564, 573-74 (1972)(also establishing principle that government-imposed stigma that closes job opportunities is actionable under section 1983).  
Based upon the foregoing, for Petitioners to request that a private organization such as an HIO could be required to deprive an individual of his right to practice his chosen profession for the entirety of his life is beyond the pale.  Furthermore, as stated in Section I. hereinabove, APHIS has stipulated that
  “[t]he HPA does not provide APHIS with the authority to implement certain    requests in the petition.  Specifically, APHIS does not have the authority under the HPA to permanently disqualify horses that have been scarred from soring from competitions, nor does APHIS have the authority to permanently disqualify repeat violators of the HPA . . . .”
76 Fed. Reg. 20570 (emphasis added).  Consequently, no additional response to Petitioners’ request for permanent disqualification of “repeat offenders” is necessary and additional rulemaking on this issue is not justified.

For the reasons stated hereinabove, Respondent WHTA asks the Secretary to deny Petitioners’ request for rulemaking.

Respectfully submitted,

__________________________________                                                   Date:  June 10, 2011
Fax:  931/684-5895