Russell J. Gaspar Legal Approaches & Access to Information Frequently Asked Questions About HPA Enforcement

The HPA – A Brief History “To retain respect for sausages and laws, one must not watch them in the making.” Otto von Bismarck

The 1970 Act The HPA as enacted in 1970 was an historic first step, because declared soring to be illegal under Federal law However, the 1970 Act was hampered by the fact that: Its definition of “sored” turned out to be too narrow to encompass all soring practices; It did not include an effective enforcement program; and Its penalty structure was inadequate to punish and deter violators

The 1976 Amendments To address these problems, the 1976 Amendments Expanded the definition of “sore” Extended the scope of the Act to include sales and auctions Expanded the description of prohibited acts Required horse show management to disqualify sore horses Increased the criminal penalties for “knowing” violations Increased the civil penalties, to include suspensions as well as fines Improved USDA’s ability to prosecute enforcement actions, including the detention of horses

The 1979 Regulations The regulations adopted by USDA in 1979 remain the core of the Department’s implementation of the HPA Prohibited practices and devices Scar rule Requirement for inspection area at shows Recognition of Horse Industry Organizations, certification of DQP programs, and licensing of DQPs Responsibilities of horse show management Maintenance and inspection of records of horse shows and HIOs Uniform inspection procedures (added in 1990)

HPA Enforcement – Theory and Practice One way or another I’m gonna find you I’m gonna getcha’, getcha’, getcha’, getcha Blondie, 1978

Who Sets the Penalties? Three penalty structures – two in the HPA, and one created by the HIOs with USDA oversight Statutory Penalties Criminal conviction for “knowing” violations -- $3,000 / 1 year; $5,000 / 2 years for a second offense Civil penalties -- $2,000 fine plus disqualification for up to 1 year for a first offense or 5 years for a second offense USDA can compromise, modify or remit civil penalties and suspensions in enforcement actions HIO-imposed penalties For violations of HIO rules – not federal violations (variable) Uniform penalty requirement for HIOs?

Book ‘im, Danno Steve McGarrett, Hawaii 5-0 Who Enforces the Act?

How does APHIS Enforce the Act? APHIS attends 5-10 % of the horse shows every year in 2008, 36 in 2009, 45 through 9/23/2010. About 1/4 to 1/3 are in observer status only – no enforcement. Inspection teams consist of Veterinary Medical Officers, animal care inspectors and/or investigators. Focus for years has been on industry compliance and self-regulation rather than direct enforcement by APHIA, whether civil or criminal. The Operating Plans were the ultimate expression of that approach. APHIS presence historically has resulted in significantly better DQP performance – OIG data shows that APHIS attended 6% of the shows, but these resulted in 49% of the tickets issued. In 2010, AHPIS attended shows where 6,019 horses were entered. Inspections resulted in 479 violations being written up – a violation rate of about 8%, down from 13% in 2009.

Why does USDA write tickets and not Justice Department? The HPA provides that civil enforcement is the responsibility of the USDA, not the Justice Department If USDA decides to bring a federal civil enforcement case, a complaint is issued through USDA’s OGC, followed by an administrative hearing process and review. OGC acts as the “prosecutor” for civil enforcement cases. If USDA believes that there has been a “knowing” violation, it “shall” inform the Attorney General / DoJ for determination of prosecution. Why does USDA write tickets and not Justice Department? The Act provides that civil enforcement – fines and suspensions -- is the responsibility of the USDA. If USDA decides to bring a federal case, a complaints is issued through OGC, followed by an administrative hearing process and review. If USDA believes that there has been a “knowing” violation, it “shall” inform the Attorney General / DoJ for determination of prosecution. 15 USC § 1826.

Why HPA violations have never taken the criminal route? Burden of proof: beyond a reasonable doubt “knowingly” standard requires additional element of proof that the defendant is aware of the unlawful act and does not act through ignorance, mistake or accident US Attorney enforcement priorities Cost -- limited budget, limited personnel and related resources to assemble proof, testify, etc.

What About Civil Enforcement? Currently there are 10 persons on USDA suspension Of these, 5 are from 2008 and 2009 –all by consent decision or default (not litigated cases) Historically, USDA suspension numbers have been much higher Few reported ALJ and JO decisions in What’s in the civil enforcement “pipeline”?

Money don’t buy everything it’s true, But what it don’t buy I can’t use, Give me money... The Beatles, 1963 Show me the money....

Is the HPA Program Adequately Funded? 1976 Amendments included a statutory authorization of $500,000 per year for the HPA program The 2010 appropriation of $499,000 is 1/43 of AWA budget of $21.5 million If adjusted for inflation, $500,000 in 1976 dollars would be equal to $1.92 million today Current recommendation to increase the appropriation to $900,000 is less than half of the effective purchasing power represented by $500,000 in 1976 dollars

Where do we go from here? You can’t always get what you want, But if you try some time you just might find, You get what you need... Rolling Stones, 1969