pay civil penalties as a cost of doing business.19

Section 6(c) of the Horse Protection Act (15 U.S.C. § 1825(c)) specifically provides that disqualification is in addition to any civil penalty assessed under section 6(b) of the Horse Protection Act (15 U.S.C. § 1825(b)). While section 6(b)(1) of the Horse Protection Act (15 U.S.C. § 1825(b)(1)) requires that the Secretary of Agriculture consider certain specified factors when determining the amount of the civil penalty to be assessed for a violation of the Horse Protection Act, the Horse Protection Act contains no such requirement with respect to the imposition of a disqualification period.

While disqualification is discretionary with the Secretary of Agriculture, the imposition of a disqualification period, in addition to the assessment of a civil penalty, has been recommended by administrative officials charged with responsibility for achieving the congressional purpose of the Horse Protection Act, and the Judicial Officer has held that disqualification, in addition to the assessment of a civil penalty, is appropriate in almost every Horse Protection Act case, including those cases in which a respondent is found to have violated the Horse Protection Act for the first time.20

Congress has provided the United States Department of Agriculture with the tools needed to eliminate the practice of soring Tennessee Walking Horses, but those tools must be used to be effective. In order to achieve the congressional purpose of the Horse Protection Act, it would seem necessary to

19

"See H.R. Rep. No. 94-1174, at 11 (1976), reprinted in 1976 U.S.C.C.A.N. 1696, 1706.

20 In re Robert B. McCloy, Jr., 61 Agric. Dec. 173, 209 (2002), appeal docketed, No. 02-9543 (10th Cir. July 19, 2002); In re Carl Edwards & Sons Stables (Decision as to Carl Edwards & Sons Stables, Gary R. Edwards, Larry E. Edwards, and Etta Edwards), 56 Agric. Dec. 529, 591 (1997), aff'd per curiam, 138 F.3d 958 (11th Cir. 1998) (Table), printed in, 57 Agric. Dec. 296 (1998); In re Gary R. Edwards (Decision as to Gary R. Edwards, Larry E. Edwards, and Carl Edwards & Sons Stables), 55 Agric. 892, 982 (1996), dismissed, No. 96-9472 (11th Cir. Aug. 15, 1997); In re John T. Gray (Decision as to Glen Edward Cole), 55 Agric. Dec. 853, 891 (1996); In re Mike Thomas, 55 Agric. Dec. 800, 846 (1996); In re C.M. Oppenheimer (Decision as to C.M. Oppenheimer), 54 Agric. Dec. 221, 321-22 (1995); In re Danny Burks (Decision as to Danny Burks), 53 Agric. Dec. 322, 347 (1994); In re Eddie C. Tuck (Decision as to Eddie C. Tuck), 53 Agric. Dec. 261, 318-19 (1994), appeal voluntarily dismissed, No. 94-1887 (4th Cir. Oct. 6, 1994); In re Linda Wagner (Decision as to Roy E. Wagner and Judith E. Rizio), 52 Agric. Dec. 298, 318 (1993), aff'd, 28 F.3d 279 (3d Cir. 1994), reprinted in 53 Agric. Dec. 169 (1994); In re William Dwaine Elliott (Decision as to William Dwaine Elliott), 51 Agric. Dec. 334, 352 (1992), aff'd, 990 F.2d 140 (4th Cir.), cert. denied, 510U.S. 867 (1993).

62 Agric. Dec. 580

impose at least the minimum disqualification provisions of the 1976 amendments on any person who violates section 5 of the Horse Protection Act (15 U.S.C. § 1824).

Circumstances in a particular case might justify a departure from this policy. Since it is clear under the 1976 amendments that intent and knowledge are not elements of a violation, there are few circumstances warranting an exception from this policy, but the facts and circumstances of each case must be examined to determine whether an exception to this policy is warranted. An examination of the record before me does not lead me to believe that an exception from the usual practice of imposing the minimum disqualification period for the first violation of the Horse Protection Act, in addition to the assessment of a civil penalty, is warranted.

For the foregoing reasons, the following Order should be issued.

1.

ORDER

Bowtie Stables, LLC, James L. Corlew, Sr., Betty Corlew,

and B.A. Dorsey are each assessed a $2,200 civil penalty ($8,800 total). The civil penalty shall be paid by certified check(s) or money order(s) made payable to the "Treasurer of the United States" and sent to:

Sharlene A. Deskins

United States Department of Agriculture

Office of the General Counsel

Marketing Division

1400 Independence Avenue, SW

Room 2343-South Building, Stop 1417

Washington, DC 20250-1417

Respondents' payment(s) of the civil penalty shall be forwarded to, and received by, Ms. Deskins within 60 days after service of this Order on Respondents. Respondents shall indicate on the certified check(s) or money order(s) that payment is in reference to HPA Docket No. 00-0017.

2.

Bowtie Stables, LLC, James L. Corlew, Sr., Betty Corlew, and B.A. Dorsey are each disqualified for a period of 1 year from showing, exhibiting, or entering any horse, directly or indirectly through any agent, employee, or device, and from managing, judging, or otherwise participating

in any horse show, horse exhibition, horse sale, or horse auction. "Participating" means engaging in any activity beyond that of a spectator, and includes, without limitation: (a) transporting or arranging for the transportation of horses to or from any horse show, horse exhibition, horse sale, or horse auction; (b) personally giving instructions to exhibitors; (c) being present in the warm-up areas, inspection areas, or other areas where spectators are not allowed at any horse show, horse exhibition, horse sale, or horse auction; and (d) financing the participation of others in any horse show, horse exhibition, horse sale, or horse auction.

The disqualification of Respondents shall become effective on the 60th day after service of this Order on Respondents.

3. Respondents have the right to obtain review of this Order in the court of appeals of the United States for the circuit in which they reside or have their place of business or in the United States Court of Appeals for the District of Columbia Circuit. Respondents must file a notice of appeal in such court within 30 days from the date of this Order and must simultaneously send a copy of such notice by certified mail to the Secretary of Agriculture.21 The date of this Order is July 11, 2003.

Ci

2115 U.S.C. § 1825(b)(2), (c).

62 Agric. Dec. 621

ORGANIC FOOD PROGRAM ACT

COURT DECISION

ARTHUR HARVEY v. USDA.

No. Civ. 02-216-P-H.

Filed October 23, 2002.

Cite as: 2003 WL 22327171 (D.Me.).

OFPA - APA - Rule making - Standing Organic - 100% organic - Made with organic National list - Synthetic ingredients – Differentiated interest - Regulations, presumption of validity - - Processed food – made with organic - 100% Organic -Organic- principal display panel Certificate of organic operation - ISO 65.

As a USDA certified organic food inspector, certified organic farmer, and an organic food handler, Petitioner had a differentiated interest to acquire standing to challenge the OFPA regulations. Petitioner objected to the Secretary's regulations which were promulgated after public hearing and a period of comment. The injury complained of must be concrete, actual and eminent. Petitioner challenged multiple aspects of the regulations promulgated by USDA: (1) He contended that the inclusion of certain non-“organic” (synthetic) food additives which are permitted under the regulations are contrary to the meaning of the Act; (2) He contended that the USDA regulations which permit labeling variously as "Organic," "Made with Organic," and "100% Organic” are confusing to the market place; (3) He challenged the basis of the "National List" of synthetic products which may be included in foods otherwise labeled as organic (up to 5% in weight), and further stated that the list will impermissibly degrade into thousands of private lists under the "commercially non-available" clause of the regulations; (4) He challenged the regulations which make public access to laboratory analysis, location of factories and fields difficult; (5) He challenged the retail food-handler exception from the OFPA regulations; (6) He challenged the prohibition of advice-giving by inspectors for a fee to organic operation applicants by the regulations; (7) He challenged the shortened transition period (12 months instead of 36 months) afforded to milk producers to obtain certification as organic milk; (8) He challenged the lack of regulations relating to "wild crops" to be harvested and sold. In each instance, except the regulations relating to "wild crops," the USDA received comments and issued regulations after considering the comments. Great deference is granted to an agency's decisional and rule-making process. The Secretary's rule-making process is presumed to be valid and will not be set aside when consistent with statutory powers and supported by substantial evidence in the record. The court granted summary judgement for the Secretary in all claims except for the lack of regulations relating to "wild crops" where the issue was remanded to the Secretary.

United States District Court,
D. Maine.

RECOMMENDED DECISION ON CROSS MOTIONS FOR SUMMARY

KRAVCHUK, Magistrate J.

JUDGMENT

Arthur Harvey has filed this civil action challenging the validity of several aspects of the regulatory rules established by the Department of Agriculture to implement the Federal Organic Foods Production Act of 1990 (OFPA), 7 U.S.C. §§ 6501-6522. In this recommended decision I address the parties' cross motions for summary judgment. (Dockets Nos. 27 & 31), ultimately concluding that the Secretary's motion should be GRANTED, except for Count Nine which I recommend be remanded to the Secretary for further rulemaking.

Scope of Administrative Procedures Act Review of Agency Rulemaking

A party is entitled to summary judgment if, "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). However, because the Administrative Procedures Act (APA) "standard affords great deference to agency decisionmaking and because the Secretary's action is presumed valid, judicial review, even at the summary judgment stage, is narrow." Associated Fisheries Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.1997) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971) and Sierra Club v. Marsh, 976 F.2d 763, 769 (1st Cir.1992)).

As applicable to Harvey's challenges, the APA provides that this Court "shall":

(1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and