INDUSTRY FILES COMMENT ON PROPOSED RULES
from the Walking Horse Report
On Tuesday October 25, 2016 Kelley Drye & Warren and attorney Joe Wilson filed the industry’s comment on the USDA’s proposed rule. The USDA’s rule would prohibit the use of pads, action devices, and hoof bands. In addition, it would eliminate the Horse Industry Organization system and turn all enforcement over to the USDA. The rule would also place tremendous burdens on show management and devastate horse shows across the industry, resulting in significant economic loss for individuals, small businesses, charities and communities.
The Tennessee Walking Horse National Celebration is the client of Kelley Drye & Warren but the comment is not only the Celebration’s comment but rather encompasses the entire show horse industry’s comments regarding the rule. The comment is extensive and addresses in detail the problems with the current proposed rule and offers an industry alternative. The next steps are unclear as the USDA will have to consider the comments they have received regarding the proposed rule and then decide if they will promulgate a final rule and if so, what elements of the proposed rule are changed or eliminated as a result of the comments filed. There is no defined timeline for when the USDA will make that decision.
Below is an executive summary of the full comment prepared by Kelley Drye & Warren. If you would like to view the comment in its entirety click celebration-comments-on-regs.
Late Tuesday October 25, 2016, the Tennessee Walking Horse National Celebration Association, which is part of the Tennessee Walking Horse (TWH) show industry, submitted 125 pages of comments with five volumes of exhibits in response to a proposal by the USDA’s Animal Plant & Health Inspection Service (APHIS) to amend the federal horse protection regulations currently in effect.
APHIS claims that the overarching objective of the proposed amendments is to completely eliminate the practice of “soring” horses that compete in horse shows. APHIS has previously described soring as the practice of injuring show horses to improve their performance in the show ring.
In its comments, the Association agrees that trying to completely eliminate soring is a laudable goal. Indeed, the Association and other reputable members of the TWH show industry are committed to that goal. However, the Association explains in painstaking detail in its comments that the proposed amendments are not the way to try to achieve that goal. That is because the amendments, if adopted, will be: (A) unlawful in several respects; (B) ineffective in eliminating soring and actually be detrimental to horse welfare; and, (C)exceptionally costly, as they will have a devastating economic impact on the TWH show industry by, among other things, causing many shows to cease operations, and result in the federal government incurring a number of costs.
The purpose of Section I in the Specific Comments is to refute the picture that APHIS tries to paint in the NPRM, i.e., that soring is rampant in the Industry and that the Industry has not done anything significant to try to stop soring. We refute that picture by pointing out all the efforts that SHOW alone has taken in an effort to combat soring. We also refute this picture by explaining that APHIS’s own statistics show that TWHs actually pass inspections at a high rate: between 92-99% based on APHIS’s own numbers. We also explain that the inspection-pass rate should be considered to be even higher if one accounts for the many alleged violations issued pursuant to the unscientific, unreliable, and subjective examination standards and protocols that APHIS VMOs employ and that APHIS requires DQPs to use. (We explain why those examination standards and protocols are unscientific and unreliable in Sections V and VI of the Comments.)
The comments also clearly point out the clear defects with the current APHIS inspection protocol. As an example at this year’s Celebration, which just took place from August 24 through September 3, 2016, the rate which the findings of APHIS VMOs examining horses were inconsistent with the findings of other APHIS VMOs re-examining the same horses was staggering, and drives home the unreliability of the examination protocol The table below summarizes the rate of these inconsistent VMO findings:
|Total Re-exams by VMOs:||Total Horses Found Compliant on Re-Exam:||% Found Compliant on Re-Exam:||Total Inconsistencies (includes those in Col. B):||Inconsistences as % of Total Re-Exams:|
These already high rates do not even take into account the inherent bias in the VMO examination process in favor of arriving at a belief of non-compliance. Only horses that the first VMO examiner believed to be non-compliant were re-examined at the Celebration (which is the case for any Horse Event, too). Thus, the VMO re-examiner knew that his APHIS co-worker, the first VMO examiner, found the horse to be non-compliant. The VMO examiner and re-examiner are team members, work for the same employer and, due to human nature, will have a strong and natural inclination not to disagree with each other. As such while we think the above-noted rates alone demonstrate a defective examination protocol, we also believe that a true blind re-examination process would have shown substantially higher rates of inconsistencies, including a high error rate of non-compliance to compliance calls. The comments also point out the significant issue with the Scar Rule including that the science (biopsies) do not support the current APHIS protocol for scar rule violations. As such the Association proposed an alternative inspection protocol to eliminate soring – not just a continuation of the same defective inspections with different players.
The Association’s comments offer an alternative regulatory approach which will be better than the proposed amendments and the current horse protection regulations at completely eliminating soring, and would be fairer to the persons who exhibit horses at horse shows. This proposal conforms to one of the biggest and loudest complaints of opponents to the TWH – it eliminates self-regulation. It also proposes to use objective scientific methods to identify and eliminate soring – in some respects going farther than USEF and other breeds. For anyone who opposes this alternative their opposition must be suspect – they just want to eliminate the TWH performance horse, not soring. The Association offers this alternative approach because, despite the very low incidence of soring in the TWH show industry today, the Association and reputable participants in the industry are committed to trying to completely eliminate the practice of soring, both from the industry and from horse events involving horse breeds other than TWHs.
The Association has asked APHIS to withdraw the proposed amendments, and, instead, consider its alternative proposal for a future proposed rulemaking and to work with the Association, others involved in horse shows, and horse welfare entities to develop a reasonable, scientifically-based, fair and effective regulatory program, such as that outlined in the Association’s proposal.
The federal Horse Protection Act (HPA) prohibits persons from showing a horse, in a horse show, if it is “sore.” Generally stated, a horse is “sore” under the HPA if a person uses a practice or device on the horse and, as a result, the horse suffers, or is reasonably expected to suffer, physical pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving. It is abundantly clear and stated by the USDA that the HPA applies to all horse breeds and shows, not just to TWHs or shows involving TWHs.
APHIS’s current horse protection regulations specifically prohibit the use of certain devices, substances, and practices on horses at shows, and permit the use of some, subject to limitation. The current regulations apply to all horse breeds, save for a few exceptions.
The current regulations permit horses to be shown in action devices weighing six ounces or less, and in pads subject to some design and height limitations on the pad. They permit the use of metal hoof bands, if not placed closer than one-half inch to the coronary band on the horse’s hoof. The current regulations do not restrict the kind or weight of horseshoes that may be used, except with yearling horses. Yearlings are prohibited from wearing any horseshoe, other than a keg or similar conventional shoe, and any shoe wearing more than sixteen ounces. The current regulations permit the use of lead or other supplemental weight on the underside of a horseshoe between the bars of the horseshoe (supplemental weight).
TWHs (and some other horse breeds) are known for their high-stepping gait, most of which we in the Industry believe and know comes from the natural ability of the horse and careful breeding. On numerous occasions in the past we have actually produced video of weanlings that have the high-stepping gait. Please see the PSHA website for these pictures and video http://psha1.com/a-unique-breed-with-a-unique-gait/. The use of pads and action devices helps accentuates the natural gait of the TWH as they do in other breeds. Horses in several other breeds, e.g., Arabians and Friesians, also wear pads when they show, and horses in some other breeds also wear action devices when they show.
If adopted, the proposed amendments by APHIS will completely prohibit the use of: pads; action devices; hoof bands; and supplemental weight. They will completely prohibit the use of any horseshoe other than a keg or similar conventional horseshoe, regardless of the horse’s age, too.
These proposed prohibitions will apply only to TWHs, Racking Horses, and “related breeds that perform with an accentuated gait that raise a concern about soring.” They will not apply to any other horse breed, notwithstanding that soring occurs with other horse breeds. In fact, APHIS proposed amendments will eliminate, for those other horse breeds, the specific prohibitions in the current regulations on the use of: (1) pads that do not meet the height and design limitations; (2) action devices weighing over six ounces; (3) hoof bands placed within one-half inch of the hoof’s coronary band; (4) supplemental weight; and (5) horseshoes other than keg or similarly conventional shoes with yearlings, and shoes weighing more than sixteen ounces with yearlings. To be clear that means that a non-TWH breed horse can wear any size, length, weight of a pad and use any size of an action device, without any HPA or other legal restrictions.
The HPA contains an incentive for the management of horse shows to engage private inspectors to examine horses at shows for soreness and to assure compliance with the HPA and horse protection regulations. That incentive was created because APHIS personnel typically inspect very few shows in a given year (typically less than 10%). The HPA requires APHIS to establish the requirements for the management of horse shows to appoint these private inspectors.
APHIS established such requirements in the current regulations. The regulations establish the “designated qualified person” (DQP) program. DQPs are private persons that management of horse shows may engage to inspect horses at the shows. The current regulations provide that DQPs must be either (i) veterinarians with equine experience, or (ii) farriers, trainers, or other knowledgeable horsepersons. The current regulations also make industry – through HIOs – primarily responsible for the licensing, oversight, and administration of DQPs. Under the current regulations, if the management of show engages a DQP, it only needs to engage one DQP if there are fewer than 150 horses entered in the show, but must engage two DQPs if there are more than 150 horses in the shows. Show management has to pay for the use of DQPs, which typically costs about $200 per DQP to inspect a six hour session at a show.
The proposed amendments will eliminate the DQP program. DQPs will be replaced with “horse protection inspectors” (HPIs), who will be required to be USDA accredited veterinarians or veterinary technicians. Additionally, APHIS, not industry, will be solely responsible for administering the licensing, training, and oversight of HPIs. The proposed amendments will require that show management that uses HPIs to engage at least two of them for shows with 150 or fewer horses and more than two for shows with over 150 horses. Show management will also have to engage a farrier to help with inspections, regardless of the number of horses in the show.
A lot has been made about the APHIS threat in 1979 that it “‘[would give] serious consideration to the prohibition of all action devices and pads’” “‘if the horse industry makes no effort to establish a workable self-regulatory program for the elimination of sore horses, or if such program is established but does not succeed in eliminating the sore horse within a reasonable length of time[.]’ However, a decade later APHIS believed that the horse industry had made satisfactory strides because, rather than prohibiting the use of pads and action devices at that time, APHIS went through a lengthy and extensive rulemaking process in 1988-89 that resulted in the promulgation of the current regulations allowing the use of pads and action devices. And specifically the American Horse Council, and AHPA issued joint comments that were the result of extensive study and discussion among AHC and AHPA officials and their membership and others including The Humane Society of the United States. They specifically listed numerous benefits of pads and the current regulations are a direct result of those comments. For APHIS, AHC, AHPA, HSUS or others to now disclaim those statements or findings is unconscionable.
II. CENTRAL POINTS IN THE ASSOCIATION’S COMMENTS
A. The Proposed Amendments Will Be Unlawful In Several Respects
The proposed amendments, if promulgated, will be unlawful in several respects. For example:
■ Several of the proposed amendments will devastate the TWH show industry, and thus be contrary to a purpose of the HPA, i.e., to protect the TWH show industry and the TWH breed.
■ Under the HPA, APHIS only has authority to prohibit the use of items and practices on a horse that cause the horse to be sore, i.e., uses of items or practices by a person on a horse from which a horse suffers, or can reasonably be expected to suffer, physical pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving. APHIS has not demonstrated by scientific or other evidence that the use of pads or action devices, as allowed under the current regulations, causes horses to be sore. The same is true for the use of the other equipment that APHIS proposes to ban (e.g., hoof bands, horseshoes other than a “keg or similar conventional” horseshoe). Indeed, scientific and other evidence actually shows that the use of these items does not cause soring. Thus, APHIS has no authority to ban the use of these items as allowed under the current regulations. As a matter of fact neither APHIS, AAEP, AVMA or any other commenter provide any scientific evidence that the current pad and action device cause soring.
■ The federal Administrative Procedure Act (APA) provides that agency regulations are unlawful if they are arbitrary and capricious. APHIS’s proposed prohibitions on the currently permissible use of the items addressed in the amendments will be arbitrary and capricious because, notably, the evidence on which APHIS relies does not show that such uses cause horses to be sore.
■ The fact that the proposed bans on the noted items will apply just to TWHs, Racking Horses, and related breeds that perform with an accentuated gait that raise a concern about soring, rather than all horse breeds, demonstrates that the currently permissible use of these items does not cause soring. If it did, one would certainly expect APHIS to prohibit their use with all horses. Or, this fact demonstrates that APHIS is singling out just shows involving TWHs, Racking Horses, and related breeds that perform with an accentuated gait, even though they are similarly situated to shows of other breeds. Either way, this makes these proposed bans arbitrary and capricious. ■ The HPA makes it clear that industry is to have a role in enforcing the HPA. USDA has recognized as much. However, the proposed amendments to the DQP program will eliminate industry’s role in enforcing the HPA, which is contrary to the HPA and thus unlawful.
■ The proposed amendments to the DQP program will increase the scope of the due process violations that occur with horse inspections at shows now. Today, horses are disqualified from shows when an APHIS veterinary medical officer inspects the horse at a show and finds it be in violation of the HPA. APHIS does not give the horse’s owner and trainer an adequate opportunity to be heard on this finding before the horse is disqualified. Nor, in the vast majority of instances, does APHIS give them an opportunity to be heard on the finding after the disqualification. Under these circumstances, APHIS violates the owner and trainer’s rights to due process guaranteed by the Constitution. The proposed amendments to the DQP program will make HPIs de facto APHIS agents due to the significant ability to direct and control that APHIS will have over the HPIs (unlike the DQPs). This means that when an HPI inspects a horse and finds it to be in violation of the HPA, and the horse is disqualified from the show as a result, the HPI’s action will equate to government action, and thus the HPI will be violating the due process rights of the horse’s owner and trainer, too.
B. The Proposed Amendments, If Adopted, Will Be Ineffective in Eliminating Soring and Actually Detrimental to Horse Welfare in Several Respects
The proposed amendments will not actually help to eliminate soring because they ban the uses of devices that, as allowed under the current regulations, do not cause soring. The proposed amendments will actually be counter-productive in trying to eliminate soring. That is because the amendments, if they are adopted as a final rule, will make people think that APHIS has actually done something to help eliminate soring when, in fact, it has not, and will take focus off of trying to develop better means to detect and catch the (few) people who are still sore horses.
In addition, the proposed amendments will actually be detrimental to horse welfare. Notably, the proposed amendments will completely eliminate from the current regulations – for breeds other than TWHs, Racking Horses, and related breeds that perform with an accentuated gait that raise concerns about soring – all the specific prohibitions on the use of, e.g., action devices weighing over six ounces, pads that do not meet certain material and design conditions, and substances. This means, for example, that horses in those other breeds will be permitted to be shown wearing action devices weighing several pounds. Or in pads without any height limitation. It also means that any kind of horseshoe of any weight can be used with yearling horses in those other breeds. If the amendments are adopted, only the general term that “[n]o device, method, practice, or substance shall be used with respect to any horse at any horse show, horse exhibition, or horse sale or auction if such use causes or can reasonably be expected to cause such horse to be sore” will apply to other breeds when it comes to the use of devices and substances.
The proposed amendments will be detrimental to the welfare of TWHs, Racking Horses, and related breeds. They will prohibit the use of hoof bands – a device which is designed to prevent a horse from throwing a shoe for the horse’s safety. Due to the way they step, TWHs are prone to stepping, with their hind hooves, on the shoes on their front hooves, and throwing a shoe as a result. The amendments will ban the use of any horseshoe, other than a keg or similar conventional shoe. But many horses, due to such things as their size and weight, need to be shod in a shoe other than a keg or similar conventional horseshoe for the horse’s health and safety. The amendments will ban the use of pads, even though they serve many therapeutic purposes. The amendments (like the current regulations) will prohibit the use medications and other substances that help to alleviate the routine aches that any show horse (or human athlete) will experience from time to time, and which are currently allowed in other breeds.
The proposed requirement that HPIs be USDA accredited veterinarians and veterinary technicians will result in fewer private inspectors being engaged to examine horses, which is contrary to the HPA and the goal of trying to catch and eliminate soring. That requirement will result in very few persons signing up to be HPIs. Indeed, APHIS estimates that it will get only 20 applicants to be HPIs. That is nowhere near enough HPIs to cover the several hundred HPA-regulated shows and events that occur in a year. Even if there were enough HPIs, veterinarians and veterinary technicians, because they are professionals, will almost assuredly charge a rate to inspect horse shows that would make it cost prohibitive for management of shows to engage them.
C. The Proposed Amendments, If Adopted, Will Be Exceptionally Costly
APHIS’s Regulatory Impact Analysis on the economic impact of the proposed amendments is woefully deficient. It notes that the APHIS Administrator certified that the proposed amendments, if promulgated, “will not have a significant economic impact on a substantial number of small entities” in the TWH show industry. That is flat-out wrong.
Even if one just looks at the show sector (entities that own or operate the shows), it is evident that the amendments will have a significant economic impact on a substantial number of small entities in the industry. The entities that own or operate TWH shows are “small entities” under the federal Regulatory Flexibility Act (RFA). The ban on pads and action devices by itself will eliminate the Performance divisions at TWH shows, and, as a result, put over one half of the TWH shows that are affiliated with an HIO out of business or drastically shrink their revenues by about 75%.
Even more TWH shows than that, including shows that have only Pleasure divisions, could be forced to close and have their revenues reduced if APHIS adopts the proposed amendment that prohibits the use of any horseshoe, other than a keg or conventional shoe. APHIS did not even consider the economic impact of that amendment in its Regulatory Impact Analysis.
Because the proposed amendments will have a significant economic impact on a substantial number of small entities, it was unlawful under the RFA for APHIS to issue notice of the proposed amendments without including an initial regulatory flexibility analysis, which, under the law, is a much more detailed economic analysis of the costs and benefits of proposed regulations.
The economic devastation from the proposed ban on pads and action devices (and ban on shoes other than keg shoes) will not be limited to just those who own or operate shows. It will also reach others who participate in the TWH show industry or who benefit from it. The persons who work at the shows, the trainers of the horses who perform in the shows and the farriers who shoe the horses could lose their jobs, or at least see their incomes cut significantly. The closing and reduction in size of TWH shows will have a negative economic impact on the local communities that host the shows to the tune of millions of dollars.
Furthermore, if the proposed amendments to the DQP program are adopted, all, or virtually all, of the current DQPs will be ineligible to be HPIs. They will thus lose the income that they earn from serving as DQPs. Persons who work for HIOs that provide support for the DQP programs of the HIOs will likely lose their jobs. The requirement that HPIs be veterinarians or veterinary technicians will likely result in a significant increase in what it costs to hire an HPI compared to what it costs to hire a DQP to inspect a show. That, in addition to the proposed requirement that show management engage at least two HPIs per show plus a farrier, will increase the costs of putting on a show and likely will result in some shows closing down.
The proposed amendments are also going to result in costs for the federal government, if they are adopted. APHIS will have to spend hundreds of thousands of dollars to take on the tasks that HIOs do now in administering the DQP program. There will be litigation over the legality of the proposed amendments. Not only will the federal government have to spend money to defend against those legal challenges, it could have to pick up the litigation costs of persons who make the challenges pursuant to the Equal Access to Justice Act. The proposed amendments will result in the significant impairment of value of TWHs. Thus, the federal government will also be exposed to claims for the diminished value under the Takings Clause of the Fifth Amendment.
D. The Association’s Alternative Regulatory Proposal
In its comments, the Association offers an alternative to APHIS’s proposed amendments that will help to eliminate soring better than the proposed amendments and the current regulations would, and will make the current regulatory regime fairer to those who participate in horse shows.
Under the Association’s proposal, an entity (Entity) would be established that would be independent of both industry and APHIS. The entity could be established under the current regulations that HIOs follow to become established, or through some new means. The Entity would have a veterinary advisory council that would include veterinarians from outside the horse show industries. This veterinary advisory council would be tasked with, in consultation with APHIS, developing reliable, objective scientifically-relevant examination procedures for examining horses to detect if they are sore.
As explained in the Association’s comments, the examination protocol under the current regulations, and the proposed amendments, is highly unreliable, subjective, and imprecise and, not surprisingly, results in a high rate of inaccurate findings, including a high rate of false positive findings of alleged violations of the HPA, the “Scar Rule,” and other regulations. A finding that a horse is in violation of the HPA or the regulations based on an examination conducted under this examination protocol can result in a violation of the horse’s owner and trainer’s constitutional guarantee to due process. Thus, a new examination protocol needs to be developed.
The Entity’s veterinary advisory council would also be responsible for overseeing the private inspectors under the Entity’s auspices that the management of a horse show could engage to inspect horses. These inspectors would be highly trained and qualified and non-conflicted.
The Association’s proposal would have significant benefits over APHIS’s proposed amendments to the DQP program. As one example, the deployment of objective, science-based standards would eliminate, or at least mitigate, potential bias that a horse inspector might have in favor of APHIS or industry. As another example, the Association’s alternative proposal should be less costly to APHIS, and thus free some of its resources to prosecute administrative and criminal actions for alleged violation of the HPA and the horse protection regulations. As a third example, the use of objective, science-based tests will increase the fairness of HPA enforcement, and thus restore the faith by regulated persons in the integrity of APHIS and the horse protection regime.