moved in commerce as well as horses which are at any horse show or exhibition within the United States if any horse in such show or exhibition was moved in commerce. The subsection further provides that the owner or other person having custody of any such horse shall afford such representative access to the horse and an opportunity to inspect it. A refusal to permit such inspection would constitute a violation of the bill and would expose an individual to the penalties established in section 6. Subsection 5(b) provides that the person or persons in charge of any horse show or exhibition within the United States, or such other persons as the Secretary of Agriculture may by regulation designate, shall keep such records as the Secretary may by regulation prescribe. It also provides that the person or persons in charge of the horse show or exhibition, or such other person or persons the Secretary may by regulation designate, shall afford the representatives of the Secretary access to the records and an opportunity to inspect and copy them at all reasonable times. Again a failure to keep the required records or to provide access to them would represent a violation of the bill and would expose an individual to the penalties established in section 6. Since the committee believed that it could not anticipate all of the problems which might arise in the administration of the bill, it amended the original language of subsection 5(b) in order to provide the Secretary with a more general rulemaking authority. Nevertheless, the committee would anticipate that the Secretary's initial regulations will include a requirement that records be kept which will enable representatives of the Department of Agriculture to determine whether any horses were moved to or from a show or exhibition in commerce. In addition, the initial regulations should require that records be kept which will assist enforcement officials in ascertaining the name and address of the owner or exhibitor of any horse present at the show or exhibition, and which will help the Department's representatives to determine the identity and qualifications of any veterinarians who examined the horses at the show or exhibition and the approximate time at which such horses were examined. Section 6.-Subsection 6(a) of the bill provides that any person who violates any provision of the act or any regulation issued thereunder, other than a violation subject to a criminal penalty under subsection 6(b), shall be assessed a civil penalty by the Secretary of not more than $1,000 for each violation. This subsection further provides that no penalty shall be assessed unless the person is given notice and opportunity for a hearing with respect to the violation. The subsection also gives the Secretary the authority to compromise any civil penalty. Should any person fail to pay the civil penalty which the Secretary has assessed, the bill provides that the Secretary shall request the Attorney General to institute a civil action in the U.S. district court to collect the penalty. Subsection 6(b) of the bill provides that if any person willfully violates any provision of the act, or any regulation issued thereunder, he shall be fined not more than $2,000 or imprisoned for not more than 6 months or both. The present section 6 of the bill represents a marked revision of the enforcement section of the original bill which provided only criminal penalties. The committee decided to establish civil penalties for non S. Rept. 91-609 willful violations because it believed that this would produce more frequent enforcement efforts than would imposition of a criminal penalty for a first violation. At the same time, however, it retained the criminal penalties for willful violations, anticipating that second or third time violators would customarily be subject to criminal prosecution. And since persons acquitted in a criminal proceeding could still be subject to a civil penalty for a nonwillful violation under subsection 6(a), the committee felt that it had adopted a more flexible and effective enforcement system. In addition, the committee increased the maximum penalties which could be recovered under the bill from $500 to $1,000 for nonwillful violations and $2,000 for willful violations. It did so in order to provide a more realistic deterrent to persons who might consider violating the bill, for the committee learned through the hearings that the rewards from soring-measured in terms of stud fees for a champion-could easily exceed $100,000. Thus, both the size of the penalties and the method of enforcement provided in the amended section 6 should bear a more reasonable relationship to the nature of the violation and the need for effective enforcement than did the provisions of the original bill. Section 7.-Section 7 provides that whenever the Secretary believes that a willful violation of the act has occurred, he shall inform the Attorney General and the Attorney General shall take such action as he deems approrpiate. Customarily, of course, this would involve the institution of criminal proceedings in an appropriate U.S. district court. Section 8.-Section 8 directs the Secretary of Agriculture, in administering the bill, to utilize, to the maximum extent practicable, the existing personnel and facilities of the Department of Agriculture. The committee hopes that the enforcement program established by this legislation will not require the hiring of a significant number of new employees by the Department or the acquisition of any new facilities. This section would also authorize the Secretary to utilize the officers of any State, with its consent and with or without reimbursement, to assist him in carrying out the provisions of the bill. Section 9.-This section contains a general authorization for the Secretary of Agriculture to issue such rules and regulations as he deems necessary in order to carry out the provisions of the act. Section 10.-A new section 10 was added to the bill by the committee in order to clarify the relationship of this legislation to State law. This section first emphasizes that the bill is not intended to preempt the laws of any State with respect to soring, unless the provisions of State law conflict with this bill and cannot be reconciled with it. In other words, after this legislation has been enacted a State will remain free to enact its own antisoring law and to enforce it. However, the language also makes clear the committee's intention that any State law which permits or condones soring is to be preempted by the bill. Second, this new section should also adequately express the committee's intention that even if a State has an antisoring law and an enforcement program under that law, Federal officials would still be entirely free to enter the State and enforce the Federal law concurrently. Moreover, the committee is aware that a person who has shown or exhibited a sored horse or conducted a horse show in which a sored horse is shown or exhibited could be subject to penalties under both a S. Rept. 91-609 State and the Federal statute. The committee intends that these dual violations should exist and it values this arrangement because it will enable the Federal Government to take action when the penalties actually assessed by a State are inadequate to punish an offender or to effectively deter others from committing similar offenses. Neverthe less, if State enforcement does adequately serve these functions, the committee would not expect that an individual would normally be subject to additional Federal penalties. Third, since judicial decisions with respect to the constitutionality of a dual prosecution under both State and Federal laws for similar offenses arising out of the same set of facts appear to be in a state of flux, the committee, without expressing any opinion on this area of the law, has attempted to anticipate the possible resolution of this question by including language which says that no State may undertake any enforcement action which would preclude the United States from enforcing the provisions of the bill against any person. In other words, if the judicial decisions continue to uphold the view that an individual may be penalized for a violation of both the Federal and a State antisoring law concurrently in both jurisdictions, this provision will have no effect on State action. But if in the future the courts should decide that once an individual has been prosecuted in one jurisdiction, the second jurisdiction will be precluded from bringing any enforcement action against that individual for a similar offense arising out of the same set of facts, this provision indicates the committee's intention that the Federal action should take priority. In those circumstances, a State would be prohibited from commencing an enforcement action unless the Federal Government had waived any interest in the case. And the committee would anticipate that such a waiver would be granted on a case-by-case basis in which the appropriate Federal official considered, among other factors, the vigor with which State officials had pursued earlier violations where a waiver had been granted. The committee believes, however, that since nonwillful violations under this bill are subject to civil penalties, a future judicial decision which prohibits dual Federal-State criminal prosecutions for similar offenses arising out of the same fact situation might still permit the Federal Government to collect a civil penalty from an individual who has already been criminally prosecuted by a State. If this is the case, section 10 should have no effect on State enforcement actions dealing with nonwillful violations. But should the courts decide that the combination of both a Federal civil penalty action and a State criminal prosecution would be unconstitutional, then the committee's earlier comments on Federal priority would still prevail. However, even if the courts should prohibit dual Federal-State criminal prosecutions but permit collection of a civil penalty in one jurisdiction after a criminal prosecution had taken place in another, the jurisdictional conflict would still exist with respect to willful violations. As mentioned earlier, in this situation the Federal criminal prosecution would take precedence over any State action. Absent a Federal waiver in a specific case, the State would be prohibited from acting. The committee realizes, however, that it may be difficult to determine initially whether a particular violation was committed willfully. Therefore, it would anticipate that if this confused jurisdictional situa S. Rept. 91-609 tion should arise in the future, the Secretary of Agriculture, under the authority delegated to him under section 9, would issue regulations to help guide both State and Federal officials in determining when a possible offense should be regarded as being willful for the purpose of deciding which jurisdiction should initiate enforcement proceedings. Section 11.-Section 11 provides that after the expiration of 30 calendar months following the date of enactment of this act, and every 24 calendar months thereafter, the Secretary of Agriculture is to submit to the Congress a report on the administration of the act, including a summary of enforcement and other actions taken thereunder together with such recommendations for legislative and other action as he deems appropriate. The committee would also anticipate that the Secretary would append to this report a compilation of States antisoring statutes, and that he would include in the report an analysis of the effectiveness with which the various State laws are being enforced and a specific discussion of Federal enforcement efforts in States with antisoring laws. In the event any of the jurisdictional problems discussed in this report in connection with the provisions of section 10 materialize, the committee also expects that the report would include a summary of the instances, if any, in which the Federal Government has waived its right to enforce this bill and a description of the penalties subsequently obtained by a State under its own. statute. Section 12.-Section 12 would authorize the appropriation of such sums, not to exceed $100,000 annually, as may be necessary to carry out the provisions of the bill. COSTS S. 2543 would authorize the appropriations of not more than $100,000 annually to carry out the provisions of the bill. AGENCY COMMENTS The following comments on S. 2543 were received from interested agencies. DEPARTMENT OF AGRICULTURE, OFFICE OF THE SECRETARY, Washington, D.C., September 17, 1969. Hon. WARREN G. MAGNUSON, DEAR MR. CHAIRMAN: This is in reply to your letter of July 9, 1969, requesting a report on S. 2543. The bill is entitled "To protect interstate and foreign commerce by prohibiting the movement in such commerce of horses which are "sored," and for other purposes." A horse is sored if, for the purpose of affecting its gait, a blistering agent has been applied internally or externally, or if burns, cuts, or lacerations have been inflicted on the horse, or if a chemical agent, or tacks, nails, or wedges have been used on the horse, or if any other method or device has been used on the horse, which may reasonably be expected to cause physical pain to the horse when moving or to to cause extreme fear or distress to the horse. In administration of the bill, if enacted, we would consider that the presence of heat, S. Rept. 91-609 swelling, redness, or other evidence of inflammation or loss of function of any part of the horse is evidence of the existence of physical pain in the animal within the meaning of subsection 2(a) of the bill. The practice has been identified with, but is not necessarily limited to, the Tennessee walking horse. The purpose of soring is to accentuate the natural gait of the horse and produce a high action of the forefeet. Available information indicates that the practice of soring is conducted in most States where shows or exhibitions involving Tennessee walking horses are held. Under the bill, it would be unlawful for any person (a) to ship, transport, or otherwise move, or deliver or receive for movement, in commerce, as defined in the bill, for the purpose of showing or exhibition, any horse which such person has reason to believe is sored; (b) to show or exhibit, or enter for the purpose of showing or exhibiting, in any horse show or exhibition, any horse which is sored if that horse or any other horse was moved to such show or exhibition in commerce; and (c) to conduct any horse show or exhibition in which there is shown or exhibited a horse which is sored, if any horse was moved to such show or exhibition in commerce. For enforcement purposes, representatives of this Department would be authorized to make necessary inspections of any horses which are being moved, or have been moved, in commerce, as well as inspections at any horse show or exhibition within the United States to which any horse was moved in commerce. The owner or other person having custody of any such horse would be required to afford such representatives access to and opportunity to so inspect such horse. This Department would be authorized to prescribe regulations for the keeping of records by the person or persons in charge of any horse show or exhibition in this country and such records would be available for inspection and copying at all reasonable times. Criminal penalties would be prescribed for any violation of the bill. The Secretary of Agriculture would be authorized to utilize the officers and employees of any State, with its consent, in carrying out the provisions of the bill, and we would hope to rely heavily upon assistance from those States in which shows or exhibitions are held. This Department has no objection to the enactment of S. 2543. The Bureau of the Budget advises that there is no objection to the presentation of this report from the standpoint of the administration's program. Sincerely, J. PHIL CAMPBELL, Under Secretary. U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE DEPUTY ATTORNEY GENERAL, DEAR SENATOR: This is in response to your request for the views of the Department of Justice on S. 2543, a bill to protect interstate and foreign commerce by prohibiting the movement in such commerce of horses which are "sored," and for other purposes. S. Rept. 91-609 |