True Love" as Entry No. 843, in Class No. 46, at the National Walking Horse Trainers Show at Shelbyville, Tennessee, while the horse was sore, in violation of section 5(2)(B) of the Act, (15 U.S.C. § 1824(2)(B)). On April 26, 1994, Respondent filed an Answer in which Respondent admits that on March 26, 1993, he entered for the purpose of showing or exhibiting a horse known as "Jubilee's True Love" as Entry No. 843, in Class No. 46, at the National Walking Horse Trainers Show at Shelbyville, Tennessee, but denies that the horse was sore in violation of 15 U.S.C. § 1824(2)(B). A hearing was held on May 10, 1995, in Lexington, Kentucky, before Administrative Law Judge James W. Hunt (hereinafter ALJ). Earl Rogers III, Esquire, of Michael R. Campbell & Associates, Morehead, Kentucky, represented Respondent, and Sharlene A. Deskins, Esquire, Office of the General Counsel, United States Department of Agriculture, represented Complainant. The ALJ filed an Initial Decision and Order on September 7, 1995, in which the ALJ found that Respondent violated section 5(2)(B) of the Act, (15 U.S.C. § 1824(2)(B)); assessed a $2,000 civil penalty against Respondent; and disqualified Respondent from showing, exhibiting, or entering any horse, directly or indirectly, through any agent, employee, or other device, and from judging, managing, or otherwise participating in any horse show or horse exhibition for 1 year. On October 10, 1995, Respondent appealed to the Judicial Officer to whom authority to act as final deciding officer in the Department's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 has been delegated, (C.F.R. § 2.35). On December 15, 1995, Complainant filed Complamant's Opposition to the Respondent's Appeal Petition and Brief in Nupport thereof, and on December 19, 1995, the case was referred to the Judicial Other for decision. Based upon a careful consideration of the record in this case, the Initial Pro and Order is adopted as the final Decision and Order, with additions uchunge shown by brackets, deletions shown by dots, and minor editorial vlengva mot specified. Additional conclusions by the Judicial Officer follow Xxx luxion of Law. 18 Mikal Officer was established pursuant to the Act of April 4, 1940, 55 Agric. Dec. 800 II. ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION A. Facts Respondent... is in the business of training horses. He also owns horses. On March 26, 1993, [Respondent] entered for the purpose of showing or exhibiting one of the horses he owned, Jubilee's True Love, in the National Walking Horse Trainers Show in Shelbyville, Tennessee. Jubilee's True Love was examined at the show by a designated qualified person (hereinafter DQP), Charles Thomas, [who] said the horse was alert and led freely, but reacted to palpation by flinching [her] foot and demonstrated "consistent sensitivity in the front of both front feet." [Charles] Thomas, who is not related to Respondent Mike Thomas, said a mild reaction to palpation is sufficient to "excuse" a horse from competing in the show but not enough to consider it sore. (Tr. 201-03, 216, 222.) [Jubilee's True Love] was then examined by two [United States Department of Agriculture (hereinafter] USDA) veterinary medical officers, Dr. Lynn Bourgeois and Dr. Scott Price. Dr. Bourgeois testified that he and Dr. Price examined approximately 300 horses at the 4-day show and found 7 to be sore. [(Tr. 28-29.) Dr. Bourgeois] said that the DQPS disqualified about 4[6 horses from participation in the National Walking Horse Trainers Show. (Tr. 29-30.)] Both [Dr.] Bourgeois and [Dr.] Price are experienced veterinarians. (Tr. [14-16, 24, 79-81].) [Dr.] Bourgeois said that USDA veterinarians conduct separate examinations of horses. They must agree before finding a horse sore. (Tr. 49-51.) Dr. Bourgeois said that, when he examines a horse, he palpates its feet to determine whether it is sore. Palpation, he said, is one of various diagnostic tools to determine soreness. Other . . . "indicators" [of soreness] include a horse's gait, alertness, breathing, temperature, and inflammation. However, [Dr.] Bourgeois testified that even when these other indicators are normal, the horse may still be sore. Inflammation, for instance, may be subcutaneous and therefore not visible, and the gait of a sore horse may be normal when examined because of being ["basically] at rest,["]but [a horse may] experience pain when "you speed him up" with a rider during the exhibition which would affect its gait in the show ring. Some horses, he said, are also more stoic [than other horses and, therefore, do not manifest soreness as readily as horses that are less stoic]. (Tr. 30-3[6], 38, 56, 62, 70-71, 73-74.) [Dr.] Bourgeois said that he relies on a horse's reaction to bilateral digital palpation to determine whether the horse is sore because he knows of no explanation for a bilateral reaction other than chemicals or devices. A horse's reaction to palpation, he said, provides [an] objective criterion [by which] to determine whether a horse is sore. (Tr. 45, 54-56, 70.) [Dr.] Bourgeois said he does not remember his specific examination of Jubilee's True Love, but . . . he recorded the results on a USDA Summary of Alleged Violations form [(APHIS Form 7077)] on which he indicated "extreme pain responses" to bilateral palpation. (CX 2.) At the end of the show that day, [Dr.] Bourgeois prepared an affidavit in which he stated: I approached the horse from the left side, put my hand on its neck and proceeded on down to pick up the forelimb. Palpation of anterior pastern elicited repeated marked pain responses characterized by attempts to remove limb from my grasp, abdominal tucking, and shuffling of hind feet forward. I then repeated this procedure on right forelimb and again elicited pain responses characterized by repeated attempts to remove limb from my grasp, abdominal muscle tucking, and shuffling of rear feet forward. This horse, in my professional opinion, was sored by overwork in action devices (chains), chemicals or a combination of both. CX 3, pp. 1-2. Dr. Bourgeois said that he relied only on palpation to find that the horse Was sore. (Tr. 70-71.) Dr. Scott Price testified that he observes examinations of a horse by other Veterinarians and then conducts his own examination regardless of what the others may have found. The purpose in soring is not to cripple a horse, he sand, but to exaggerate its gait when exhibited. When chains strike the sored ated they cause pain and affect the horse's gait. Like Dr. Bourgeois, [Dr.] Price said that there are various pain indicators, and that just one of them, if 'tead enough," can show that a horse is sore. (Tr. 90, 111, 115.) [ | Pace testttted that palpation is a diagnostic tool and [is] one of the procedures he learned in veterinary medical school. [Dr. Price] said he pipacs by applying pressure with the ball of his thumbs until the thumbnail 55 Agric. Dec. 800 begins to change color. He then looks for a reaction. A sound horse, he said, does not react to palpation, whereas a sored horse will respond through consistent pain reaction to the palpation, such as flexing its shoulder muscles, clenching its abdominal muscles, or shifting its weight. (Tr. 99[-100], 104, 109-112....) When it was suggested that a horse's reaction to palpation was a "learned reaction" or "learned response," [Dr.] Price said that, if that were the case, 98 percent of the horses would be "written up" because of having "chains and weights and rollers applied to their feet." (Tr. 131.) He said that, of approximately 10,000horses he has examined, he has found [between 11⁄2 and] 2 percent [of the horses] sore. (Tr. 101.) [Dr.] Price also said that a "silly "horse can be distinguished from a sored horse because its reactions to palpation are inconsistent: A silly horse has an inconsistent response to our palpation, and we always give the benefit of the doubt to the exhibitor when we have any questions if that's the case. A sore horse gives a complete and repetitive and consistent response and I can elicit it when I go back to that spot repeatedly. And usually I go back and check that leg again to make sure in my mind that I can call this a sore horse. Tr. 97. He said that "anxious" or "nervous" horses are similar to "silly "horses, but that a "fractious" horse is one that will not allow itself to be examined. Price said fractious horses are usually excused from competition. (Tr. 97-98.) [Dr.] Price said that, when he finds a horse sore, he prepares an affidavit when the examination is fresh in his mind and that he prepared [an] affidavit in this case, (CX 4),] in the evening during the show. (Tr. 87.) In his affidavit concerning his examination of Jubilee's True Love, he said: At 6:50 p.m., I examined the horse. The horse was extremely sore in a large area on the anterior aspect of both front pasterns. The horse jerked violently, and gave a consistent & repetitive withdrawal to palpation. Additional signs of soreness included shifting weight, and rippling of shoulder & abdominal muscles in response to palpation. This horse was definitely not silly; it was sore. CX 4, p. 1. Respondent... testified that he has never been charged with violating the Horse Protection Act in the years that he has been training and showing horses. He said that Jubilee's True Love was trained in chains, but that no chemicals or substances, other than grease, were ever put on the horse's feel... (Fr. 315-30.) The horse's trainer, [Mr.] Jimmy Acree, testified that he applied grease to [Jubilee's Frue Love's] legs to keep the skin moist and prevent chains from unitating the skin. He said that no substances other than grease were ever put on the horse's feet. [Mr.] Acree said he observed the USDA veterinarians examine [Jubilee's True Love] from about 40 feet away and that he did not we any pain reactions. He also said that, when he palpated the horse's feet, there was some movement but that it was not consistent. He said the horse Willy."(Fr. 170-87.) [Mr Jamie Hankins, another horse trainer, was asked to check the horse ader [she] was returned to the stable. [Mr.] Hankins said the horse was gogy and that, when he palpated the horse's pasterns, there was no yusical reaction. (Tr. 233[-34], 242-43, 267.) [ ] Ray Miller, a doctor of veterinary medicine who was attending the ym, the qxamined Jubilee's True Love at the request of Respondent's wife. IN Aptiga has 25 years of experience as an equine practitioner and is a sea of the Equine Practitioner Association. [(Tr. 272.)] The record does wodowa Dr. Miller examined the horse after the examination by XM vererinarians. [Dr.] Miller indicated that he was asked to examine 4. how they had just gotten back to the barn with her." (Tr. 277.) 64 Pro. Di Miller said he started his examination by looking at the A Mude of Jubilee's True Love and that he observed that [she] the old mare in good health, in good condition, very alert, -**** NHe said that there was no sign of inflammation, that the App was normal, that [her] gait was normal, and that [she] Me testified that it is a common practice to put grease on a Avfett gase sometimes, but not normally, causes an allergic ཅད། ་ར ཅ དེ pwded to palpate the horse's feet, which, he said, is set pain that he has used for 25 years, and which, he had been using to check horses for pain even before Horse Protection Act. (Tr. 279.) However, reaction to y also be due to reasons other than pain, such as being 290 91.) Dr.] Miller further testified that, although XZ9069 & €¢ Aavol, it alone is not sufficient to make a diagnosis that auve Me went that a group of veterinarians had concluded in a |