USDA Rulemaking Petition Sound Horse Conference 2010 Joyce M. Wang Latham & Watkins LLP Latham & Watkins operates as a limited liability partnership worldwide with affiliated limited liability partnerships conducting the practice in the United Kingdom, France and Italy and affiliated partnerships conducting the practice in Hong Kong, Japan and Singapore. Latham & Watkins practices in Saudi Arabia in association with the Law Office of Mohammed Al-Sheikh. Copyright 2010 Latham & Watkins. All Rights Reserved.
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Rulemaking Petitions 101 Rulemaking Petition: a mechanism for individuals, public interest groups, and private enterprises to ask federal agencies to change existing rules (or create new rules or deregulate). Who can file a rulemaking petition? Anyone (including you!) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. Administrative Procedure Act, 5 U.S.C. 533(e) 3
Rulemaking Petitions 102 Each federal agency has a different process for rulemaking petitions Agencies will generally either accept or deny the petition If accepted, the agency will likely commence a rulemaking, change an existing rule or begin a deregulatory action A final decision can take months or even years 4
Public Participation in Rulemaking Under the Administrative Procedure Act, the public must have the opportunity to submit written comments for consideration. The agency publishes the proposed rule in the Federal Register The public can: comment on the proposed rules provide additional data to the agency review the rulemaking record The agency must analyze and respond to the public s comments on the proposed rule The final rule is codified in the Code of Federal Regulations 5
Limitations of the Horse Protection Act Lack of Funding USDA can t afford to send DQPs to all events Poor Enforcement Fewer tickets more participants more $$ for the event Corruption in leadership Conflicts of Interest DQPs are often local vets, farriers, breeders Inefficient Penalty Structure Fines only imposed after hearing Suspensions easy to get around Suspensions can be delayed via appeals 6
Participants in This Petition Humane Society of the United States (HSUS) American Society For the Prevention of Cruelty to Animals (ASPCA) American Horse Protection Association (AHPA) Friends of Sound Horses (FOSH) Senator Joseph Tydings 7
Summary of Petition Requests E N F O R C E M E N T How can the HPA be better enforced? NEW RULES Set or increase minimum penalties HARSHER PENALTIES Decertify non-compliant HIOs Permanently disqualify repeat offenders Permanently disqualify scarred horses 8
Petition Request Harsher Penalties CURRENT PENALTY PROPOSED PENALTY BILATERAL SORE 4 th + offense UNILATERAL SORE 4 th + offense SCAR RULE 4 th + offense PRESSURE- SHOEING 4 Years Lifetime Suspension 1 Year 2 Years 1 Year Lifetime Suspension Unspecified 1 st offense 2 nd offense 2 Years + Horse Dismissed for Season Lifetime Suspension STEWARDING SWAPPING HORSES OR NUMBERS None None 1 Year (per act) + Horse Dismissed for Season 1 Year + Horse Dismissed from show 9
Petition Request Decertification Automatic Decertification if HIOs Fail to Correct Within 30 Days of Notice From USDA EXAMPLES Licensing (or failing to revoke license) a DQP that has violated the HPA Permitting a disqualified or scarred horse to show Prohibited action devices on show premises Failure to correct known problems Swapping in sound horses to pass inspection Switching horse numbers to avoid proper ID Prohibited persons inside inspection areas 10
Petition Request Disqualify Repeat Offenders Permanent Disqualification After 3 Violations (individuals and organizations) Since 1986, 50% of documented HPA violations are committed by repeat offenders Permanent disqualification would prevent that individual/organization from: Entering or competing in shows Providing funds to show/train horses Performing inspections Judging Sitting on an HIO/show committee 11
Petition Request Disqualify Horses WHY? Horse-Specific Lifetime Ban on Showing Prevent repeated soring of the same horses Permanently disqualified horse = huge $$ loss for owners Increased inspection efficiency Currently, scar rule violations result in dismissal from that show only, so the horse can still participate in a different show. 12
OIG Audit Report Finding 1 Finding 1: APHIS Needs to Improve its Program for Inspecting Show Horses for Abuse and Penalizing Violators 1 2 3 4 5 OIG RECOMMENDATION Abolish current DQP system; new inspectors will be independent VMOs Seek additional funding from Congress to oversee HPA Revise agency regulations so that independent VMOs and APHIS veterinarians can directly issue violations Revise regulations so that APHIS may discipline inspectors who do not meet standards, including revocation of USDA accreditation Develop and implement protocols to more consistently negotiate penalties with individuals in violation of the HPA USDA-APHIS RESPONSE Strict qualification criteria to prevent conflicts of interest License more independent, accredited vets as DQPs Requested $400K increase in funding for 2011 Penalty protocol required in all HIO rulebooks by January 1, 2011 Decertification process for HIOs that fail to enforce HPA or APHIS-mandated penalties Enforcement added to USDA-accredited vets duties License suspension/revocation of DQPs failing to enforce More number of shows attended by APHIS More unannounced visits at shows to monitor DQPs More unannounced visits at appeal hearings Written justification required for a dismissed violation 13
OIG Audit Report Finding 2 Finding 2: APHIS Needs to Improve its Controls for Ensuring that HPA Violators Do Not Participate in Shows While Suspended 6 7 8 OIG RECOMMENDATION Develop and implement controls that identify individuals with HPA violations or disqualifications to verify that these individuals do not participate in horse shows, sales, or exhibitions All horse show participants responsible for condition of horses will be checked through the database of suspended individuals Revise and enforce regulations to prohibit horses disqualified as sore from competing in all classes at a show USDA-APHIS RESPONSE HIOs will be held accountable via web-based database Publicly-searchable records of HIO suspensions by November 1, 2010 Investigation of show managers who have allowed suspended individuals to show horses Suspension lists to be posted at shows and manually checked against participants Each horse to be clearly and uniquely identified by permanently attached or embedded device Decertification of HIOs that allow showing of sored horses, including immediate suspension of HIO operations 14
Next Steps PETITION FILED OIG ISSUED AUDIT REPORT PUBLICATION OF PROPOSED RULE IN FEDERAL REGISTER NOTICE AND COMMENT PERIOD USDA ANALYSIS AND RESPONSE TO PUBLIC COMMENTS FINAL RULE CODIFIED August 2010 November 2010 15
Comments on Proposed Rule If and when a proposed rule is submitted for public comment, please consider submitting supportive comments! HOW DO YOU FILE PUBLIC COMMENTS? VISIT U.S. MAIL select Proposed Rules 16
Contact Info Joyce M. Wang Joyce M. Wang Latham & Watkins LLP 140 Scott Drive Menlo Park, CA 94025 (650) 470-4857 joyce.wang@lw.com 17