55 Agric. Dec. 800 6(d)(5) of the Act, (15 U.S.C.§ 1825(d)(5)),] raises the presumption that the horse is sore. The presumption may, of course, be rebutted. In short, neither palpation nor the "protocol" [for conducting palpation] is a substantive rule that has to undergo the . . . rule making process. 5. Respondent contends that [the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriation Act, 1993,] Pub. L. No. 102-341, 106 Stat. 873, 881-82 (1992), prohibits the use of palpation alone to determine whether a horse is sore. This question was certified in this case to the Judicial Officer, as the Secretary's representative, for a ruling. The Judicial Officer ruled that this law does not prohibit the finding that a horse was sore based solely on digital palpation as the only diagnostic test to determine whether a horse was sore. ... [In re Mike Thomas, 54 Agric. Dec. 1096 (1995) (Ruling on Certified Question)]. 6. Finally, Respondent argues that [he] has rebutted any presumption that Jubilee's True Love was sore. For the reasons already discussed, I find that the reports prepared by Drs. Bourgeois and Price are reliable and probative substantial evidence showing that [Jubilee's True Love] displayed signs of bilateral pain when [her] pasterns were palpated. There is no evidence that the horse's reaction to palpation was a "learned response." The testimony presented by non-veterinarians [Mr.] Acree and [Mr.] Hankins, despite their [familiarity] with palpation, is insufficient to rebut the findings and conclusions of the USDA veterinarians, Drs. Bourgeois and Price. In re Bill Young, 53 Agric. Dec. 1232, 1291 (1994)[, rev'd, 53 F.3d 728 (5th Cir. 1995) (2-1 decision)]. - As for Dr. Miller, I find that he was a credible witness concerning his examination of Jubilee's True Love. However, he examined the horse at some undisclosed period of time -- possibly an hour or two after the examinations by Drs. Bourgeois and Price. While there is no evidence that an anesthetic was given to [Jubilee's True Love] before Dr. Miller's examination, it is not unusual for a horse to be found sore at one examination, but found not sore at a later examination during the same show. In re Jackie McConnell, 44 Agric. Dec. 712,722 (1985). Dr. Miller, moreover, did find that [Jubilee's True Love] reacted when he palpated [her], but found that the reaction was not repeatable. The DQP, on the other hand, who examined the horse about the same time as the USDA veterinarians, did, like them, find that the horse's reactions were repeatable and consistent. Complainant has thus shown by a preponderance of the evidence that, when the USDA veterinarians examined [Jubilee's True Love, she] was sore. Accordingly, as Jubilee's True Love was sore at least during this phase of the entering process, [she] was sore when "inspection, "as proposed, was adopted as a final rule effective January 5, 1979, and continues to read, as follows: "Inspection" means the examination of any horse and any records pertaining to any horse by use of whatever means are deemed appropriate and necessary for the purpose of determining compliance with the Act and regulations. Such inspection may include, but is not limited to, visual examination of a horse and records, actual physical examination of a horse including touching, rubbing, palpating and observation of vital signs, and the use of any diagnostic device or instrument, and may require the removal of any shoe, pad, action device, or any other equipment, substance or paraphernalia from the horse when deemed necessary by the person conducting such inspection. 44 Fed. Reg. 1558, 1562 (1979) (codified at 9 C.F.R. § 11.1).] Respondent argues that even though the regulations refer to palpation, they do not define the "protocol" [to be used to palpate horses,] except for [the protocol to be used by the] DQPs. (9 C.F.R. § 11.21[(a)](2).) The record in this case shows that palpation is a diagnostic procedure taught in veterinary medical school and is used not only by doctors of veterinary medicine and DQPs, but also by laypersons. Horse trainers [Mr.] Jimmy Acree and [Mr.] Jamie Hankins indicated that they knew the "protocol" for palpating horses, [(Tr. 192-93, 228, 241-43, 258-59),] while Respondent said he knew the pain signs to look for when a horse is palpated. (Tr. 324.) Respondent's wife also apparently knew how to palpate. (Tr. 243.) Therefore, as palpation is a commonly known, accepted, and used diagnostic tool, there appears no need to spell out a "protocol" with which persons in the horse exhibition industry are already familiar. ... This "protocol," as described at the hearing (and as described by the court in Young, supra, [53 F.3d] at 729-30), [consists of] pressure applied with the ball of the thumb to the horse's pastern areas while looking to see if there are any objective reactions or signs of pain by the horse, such as withdrawing its foot or tightening of its stomach muscles. If there is a reaction, the examiner, as Drs. Bourgeois, Price, and Miller all emphasized, returns to the area causing the reaction to determine if the horse displays a consistent or repeatable bilateral "abnormal sensitivity." If the reaction is consistent, it is evidence of pain, and, [in accordance with section 55 Agric. Dec. 800 6(d)(5) of the Act, (15 U.S.C.§ 1825(d)(5)),] raises the presumption that the horse is sore. The presumption may, of course, be rebutted. ... In short, neither palpation nor the "protocol" [for conducting palpation] is a substantive rule that has to undergo the . . . rule making process. ... [In re Mike 5. Respondent contends that [the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriation Act, 1993,] Pub. L. No. 102-341, 106 Stat. 873, 881-82 (1992), prohibits the use of palpation alone to determine whether a horse is sore. This question was certified in this case to the Judicial Officer, as the Secretary's representative, for a ruling. The Judicial Officer ruled that this law does not prohibit the finding that a horse was sore based solely on digital palpation as the only diagnostic test to determine whether a horse was sore. Thomas, 54 Agric. Dec. 1096 (1995) (Ruling on Certified Question)]. 6. Finally, Respondent argues that [he] has rebutted any presumption that Jubilee's True Love was sore. For the reasons already discussed, I find that the reports prepared by Drs. Bourgeois and Price are reliable and probative substantial evidence showing that [Jubilee's True Love] displayed signs of bilateral pain when [her] pasterns were palpated. There is no evidence that the horse's reaction to palpation was a "learned response." ... The testimony presented by non-veterinarians [Mr.] Acree and [Mr.] Hankins, despite their [familiarity] with palpation, is insufficient to rebut the findings and conclusions of the USDA veterinarians, Drs. Bourgeois and Price. In re Bill Young, 53 Agric. Dec. 1232, 1291 (1994)[, rev'd, 53 F.3d 728 (5th Cir. 1995) (2-1 decision)]. As for Dr. Miller, I find that he was a credible witness concerning his examination of Jubilee's True Love. However, he examined the horse at some undisclosed period of time -- possibly an hour or two -- after the examinations by Drs. Bourgeois and Price. While there is no evidence that an anesthetic was given to [Jubilee's True Love] before Dr. Miller's examination, it is not unusual for a horse to be found sore at one examination, but found not sore at a later examination during the same show. In re Jackie McConnell, 44 Agric. Dec. 712, 722 (1985). Dr. Miller, moreover, did find that [Jubilee's True Love] reacted when he palpated [her], but found that the reaction was not repeatable. The DQP, on the other hand, who examined the horse about the same time as the USDA veterinarians, did, like them, find that the horse's reactions were repeatable and consistent. Complainant has thus shown by a preponderance of the evidence that, when the USDA veterinarians examined [Jubilee's True Love, she] was sore. Accordingly, as Jubilee's True Love was sore at least during this phase of the entering process, [she] was sore when crated section 5(2)(B) of the Horse Protection Semering for the purpose of showing or ce's True Love" at the National Walking ..... Fennessee, on March 26, 1993, while the A CONCLUSIONS BY THE JUDICIAL OFFICER ssues in Respondent's Appellant Brief -Recollection Recorded Evidence Was Properly ... x Cestadie, Prubative, and Substantial Respondent contends that: 55 Agric. Dec. 800 I. THE ALJ ERRONEOUSLY ALLOWED INTO EVIDENCE THE AFFIDAVITS AND SUMMARY OF ALLEGATIONS [SIC] FORMS PREPARED BY THE USDA VETERINARIANS AND ERRONEOUSLY RELIED ON SAID DOCUMENTS TO SUPPORT A FINDING THAT THE HORSE IN QUESTION IN THIS ACTION WAS IN VIOLATION OF THE HORSE PROTECTION ACT. RAB, p. 1. I disagree with Respondent. The ALJ properly admitted into evidence and relied upon Dr. Bourgeois' affidavit, (CX 3); Dr. Price's affidavit, (CX 4); and the Summary of Alleged Violations form (APHIS Form 7077) prepared and signed by Drs. Bourgeois and Price, and Mr. Head, (CX 2). Respondent contends that the admission of and reliance on CX 2, 3, and 4 were erroneous for a number of reasons. First, Respondent contends that CX 2, 3, and 4 were erroneously admitted because neither Dr. Bourgeois nor Dr. Price "could independently recall" their examinations of Jubilee's True Love on March 26, 1993. (RAB, p. 1.) In almost every Horse Protection Act case, USDA veterinarians testifying about the examination of a horse have no recollection of the examination at the time of the hearing. Often USDA veterinarians examine hundreds of horses each year and are asked to testify about the examination of a single horse a year or more after conducting the examination. In the instant proceeding, Dr. Bourgeois and Dr. Price conducted a routine examination of Jubilee's True Love over 2 years prior to the date of the hearing. Dr. Bourgeois testified that he remembered attending the National Walking Horse Trainers Show on March 26, 1993, and examining horses, but he did not remember examining Jubilee's True Love. (Tr. 16-18.) Dr. Bourgeois' affidavit, (CX 3), is dated March 27, 1993, the day after he examined Jubilee's True Love at the National Walking Horse Trainers Show. Dr. Bourgeois testified that he prepares affidavits regarding horses that he has examined either during the show or on the day after the show at which he examines them, (Tr. 18-19); and that, while he could not recall the particular time he prepared the affidavit concerning his examination of Jubilee's True Love, he did prepare it the night he examined Jubilee's True Love. (Tr. 47, 51-52,71.) Dr. Bourgeois' affidavit states: I Lynn P. Bourgeois am a Veterinary Medical Officer employed by the United States Department of Agriculture, Animal Care. I was assigned to monitor the 25th Annual National Walking Horse Trainer's |