[Federal Register Volume 66, Number 236 (Friday, December 7, 2001)]
[Rules and Regulations]
[Pages 63588-63617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30259]
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Part II
Department of Agriculture
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Animal and Plant Health Inspection Service
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9 CFR Parts 70 and 88
Commercial Transportation of Equines to Slaughter; Final Rule
Federal Register / Vol. 66, No. 236 / Friday, December 7, 2001 /
Rules and Regulations
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 70 and 88
[Docket No. 98-074-2]
RIN 0579-AB06
Commercial Transportation of Equines to Slaughter
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are establishing regulations pertaining to the commercial
transportation of equines to slaughtering facilities. These regulations
fulfill our responsibility under the 1996 Farm Bill to regulate the
commercial transportation of equines for slaughter by persons regularly
engaged in that activity within the United States. The purpose of the
regulations is to establish minimum standards to ensure the humane
movement of equines to slaughtering facilities via commercial
transportation. As directed by Congress, the regulations cover, among
other things, the food, water, and rest provided to such equines. The
regulations also require the owner/shipper of the equines to take
certain actions in loading and transporting the equines and require
that the owner/shipper of the equines certify that the commercial
transportation meets certain requirements. In addition, the regulations
prohibit the commercial transportation to slaughtering facilities of
equines considered to be unfit for travel, the use of electric prods on
equines in commercial transportation to slaughter, and, after 5 years,
the use of double-deck trailers for commercial transportation of
equines to slaughtering facilities.
EFFECTIVE DATE: February 5, 2002.
FOR FURTHER INFORMATION CONTACT: Dr. Timothy Cordes, Senior Staff
Veterinarian, National Animal Health Programs, VS, APHIS, 4700 River
Road Unit 43, Riverdale, MD 20737-1231; (301) 734-3279.
SUPPLEMENTARY INFORMATION:
Background
We are establishing regulations pertaining to the commercial
transportation of equines to slaughtering facilities. We are taking
this action to fulfill a responsibility given by Congress to the
Secretary of Agriculture in the Federal Agriculture Improvement and
Reform Act of 1996 (commonly referred to as ``the 1996 Farm Bill'').
Congress added language to the 1996 Farm Bill concerning the commercial
transportation of equines to slaughtering facilities after having
determined that equines being transported to slaughter have unique and
special needs.
Sections 901-905 of the 1996 Farm Bill (7 U.S.C. 1901 note,
referred to below as ``the statute'') authorize the Secretary of
Agriculture, subject to the availability of appropriations, to issue
guidelines for the regulation of the commercial transportation of
equines for slaughter by persons regularly engaged in that activity
within the United States. The Secretary is authorized to regulate the
food, water, and rest provided to such equines in transit, to require
the segregation of stallions from other equines during transit, and to
review other related issues the Secretary considers appropriate. The
Secretary is further authorized to require any person to maintain such
records and reports as the Secretary considers necessary. The Secretary
is also authorized to conduct such investigations and inspections as
the Secretary considers necessary and to establish and enforce
appropriate and effective civil penalties. In a final rule published in
the Federal Register on December 30, 1996 (61 FR 68541-68542, Docket
No. 96-058-1), the authority to carry out the statute was delegated
from the Secretary of Agriculture to the Assistant Secretary for
Marketing and Regulatory Programs (now the Under Secretary for
Marketing and Regulatory Programs), and from that official to the
Administrator of the Animal and Plant Health Inspection Service
(APHIS), and from the APHIS Administrator to the Deputy Administrator
for Veterinary Services.
To clarify its intentions, Congress set forth definitions in the
statute. For purposes of interpreting the statute, ``commercial
transportation'' is defined as ``the regular operation for profit of a
transport business that uses trucks, tractors, trailers, or
semitrailers, or any combination thereof, propelled or drawn by
mechanical power on any highway or public road.'' ``Equine for
slaughter'' means ``any member of the Equidae family being transferred
to a slaughter facility, including an assembly point, feedlot, or
stockyard.'' ``Person'' means ``any individual, partnership,
corporation, or cooperative association that regularly engages in the
commercial transportation of equine for slaughter'' but does not
include any individual or other entity who ``occasionally transports
equine for slaughter incidental to the principal activity of the
individual or other entity in production agriculture.''
Congress further clarified its intentions with regard to the
statute through a conference report. The conference report states that
the object of any prospective regulation would be the individuals and
companies that regularly engage in the commercial transport of equines
to slaughter and not the individuals or others who periodically
transport equines to slaughter outside of their regular activity. The
conference report also states that the Secretary has not been given the
authority to regulate the routine or regular transportation of equines
to other than a slaughtering facility or to regulate the transportation
of any other livestock, including poultry, to any destination. In
addition, the conference report states that, to the extent possible,
the Secretary is to employ performance-based standards rather than
engineering-based standards when establishing regulations to carry out
the statute and that the Secretary is not to inhibit the commercially
viable transport of equines to slaughtering facilities.
On May 19, 1999, we published in the Federal Register (64 FR 27210-
27221, Docket No. 98-074-1) a proposal to establish regulations
pertaining to the commercial transportation of equines to slaughtering
facilities in a new part of title 9 of the Code of Federal Regulations
(CFR). The new regulations would be found at 9 CFR part 88. We proposed
to divide part 88 into six sections: Sec. 88.1--Definitions,
Sec. 88.2--General information, Sec. 88.3--Standards for conveyances,
Sec. 88.4-Requirements for transport, Sec. 88.5--Requirements at a
slaughtering facility, and Sec. 88.6--Violations and penalties. The
proposed regulations pertained only to the actual transport of a
shipment of equines from the point of being loaded on the conveyance to
arrival at the slaughtering facility.
We solicited comments concerning our proposal for 60 days ending
July 19, 1999. During the comment period, we received 276 comments.
They were from animal humane associations, academia, slaughter plants,
horse industry organizations, veterinary practitioners, a State
government and a foreign government, the U.S. Congress, livestock
industry organizations, livestock transporters, an organization
representing veterinarians, and private citizens, among others.
The commenters expressed a variety of concerns that are discussed
below by topic. Many commenters referred to ``horses'' rather than
``equines''; for consistency with the rule portion of this document, we
will use the term
[[Page 63589]]
``equines,'' as appropriate, in discussing those comments.
Summary of Changes Made in Response to Comments
We are making the following changes in response to the comments we
received.
1. Definitions. We have removed the separate definitions of owner
and shipper and applied the definition of shipper to owner/shipper. As
a result, all references to ``owner'' and ``shipper'' have been changed
to ``owner/shipper.''
2. General information. Proposed Sec. 88.2(b) provided that, to
determine whether an individual or other entity transporting equines to
a slaughtering facility is subject to the regulations, a USDA
representative may request ``from any individual or other entity''
information regarding the business of the individual or other entity
who transported the equines. We have amended that language in this
final rule to clarify that a USDA representative may request that
information ``from the individual or other entity who transported the
equines.'' Also, proposed Sec. 88.2(b) stated that, when such
information is requested, the individual or other entity who
transported the equines ``will'' provide the information within 30 days
and in the format specified by the USDA representative. We have amended
this provision to clarify that the individual or other entity ``must''
provide the information within 30 days and in the format specified.
3. Requirements for transport. Proposed Sec. 88.4(a)(1) specified
that, for a period of not less than 6 hours prior to the equines being
loaded onto the conveyance, the owner or shipper must provide each
equine appropriate food, potable water, and the opportunity to rest.
This final rule clarifies that the 6 hours must be immediately prior to
the equines being loaded. Proposed Sec. 88.4(a)(3) listed information
that must be included on the owner-shipper certificate for each equine
being transported. This final rule adds the following information to
that list: (1) The owner/shipper's telephone number; (2) the receiver's
(destination) name, address, and telephone number; (3) if applicable,
the name of the auction/market where the equine is loaded; (4) the
breed of the equine; and (5) a description of any tattoos on the
equine. This final rule also requires at Sec. 88.4(a)(3) that
information provided on the owner-shipper certificate be typed or
legibly completed in ink. Proposed Sec. 88.4(a)(3) required the owner-
shipper certificate to contain a statement of the equine's fitness to
travel. This final rule clarifies that we mean fitness to travel at the
time of loading. Proposed Sec. 88.4(a)(3) required a statement on the
owner-shipper certificate about any unusual physical conditions and any
special handling needs. We have reworded this provision to clarify that
we mean any unusual physical conditions that may cause the equine to
have special handling needs. Proposed Sec. 88.4(b)(2) stated that
``veterinary assistance must be provided as soon as possible for any
equines in obvious physical distress.'' This final rule adds that
veterinary assistance must be provided by an equine veterinarian. In
addition, Sec. 88.4(b)(2) of this final rule adds that if an equine
becomes nonambulatory en route, an owner/shipper must have the equine
euthanized by an equine veterinarian. Further, Sec. 88.4(b)(2) of this
final rule specifies that, if an equine dies en route, the owner/
shipper must contact the nearest APHIS office as soon as possible to
allow an APHIS veterinarian to examine the equine, and if an APHIS
veterinarian is not available, the owner/shipper must contact an equine
veterinarian. Proposed Sec. 88.4(e) required the shipper to secure the
services of a veterinary professional to treat an equine, including
performing euthanasia, if deemed necessary by the USDA representative.
This final rule will require the veterinary professional to be an
equine veterinarian.
4. Requirements at a slaughtering facility. Proposed Sec. 88.5(b)
stated that the shipper who transported the equines to the slaughtering
facility must not leave the premises of the slaughtering facility until
the equines have been examined by a USDA representative. Under this
final rule, if an owner/shipper arrives at a slaughtering facility
outside of the facility's normal business hours, the owner/shipper may
leave the premises but must return to the premises of the slaughtering
facility to meet the USDA representative upon his or her arrival.
Section 88.1--Definitions
Shipper and Owner
A number of commenters expressed concerns about the proposed
definitions of shipper and owner.
We proposed to define shipper as ``Any individual, partnership,
corporation, or cooperative association that engages in the commercial
transportation of equines to slaughtering facilities more often than
once a year, except any individual or other entity that transports
equines to slaughtering facilities incidental to the principal activity
of production agriculture.'' We proposed to define owner as ``Any
individual, partnership, corporation, or cooperative association that
purchases equines for the purpose of sale to a slaughtering facility.''
We stated that both owners and shippers would be subject to the
regulations.
One commenter stated that exempting only those who ship equines
once a year is too limiting and suggested allowing three shipments per
year, which the commenter believed would allow the occasional transport
of equines to slaughtering facilities by equine owners. One commenter
stated that the definition of shipper should reflect both the frequency
and number of equines transported. One commenter stated that an entity
should have to adhere to the regulations if he or she transported more
than 24 equines to slaughter per year.
Based on these comments and our experience with the equine
industry, we have decided to apply the regulations to any individual,
partnership, corporation, or cooperative association that engages in
the commercial transportation of more than 20 equines per year to
slaughtering facilities, except any individual or other entity who
transports equines to slaughtering facilities incidental to his or her
principal activity of production agriculture. We believe that those
entities who transport more than 20 equines per year to slaughtering
facilities, except those entities who transport equines to slaughtering
facilities incidental to their principal activity of production
agriculture, should be considered as regularly engaged in the
commercial transportation of equines to slaughter.
Many commenters stated that replacing the term ``person'' in the
statute with the terms ``owner'' and ``shipper'' exempts from the
regulations horse owners who do not fit the definition of owner; and
horse transporters who do not fit the definition of shipper and
distorts Congress' intent. These commenters stated that Congress
included in the definition of ``person'' any individual or entity that
regularly engages in the transportation of equines for slaughter,
exempting only those who occasionally transport equines to slaughter
incidental to the principal activity of the same individual or other
entity in production agriculture; however, the proposed definition of
owner includes only an individual or entity that purchases equines for
the purpose of sale to a slaughtering facility.
We agree that the definition of owner may be confusing and could be
interpreted to mean that certain entities that did not purchase equines
for the
[[Page 63590]]
purpose of sale to a slaughtering facility could be excluded from the
requirements. Therefore, in this rule, we have removed the definition
of owner. Instead, we will use the term owner/shipper, which we have
defined as ``Any individual, partnership, corporation, or cooperative
association that engages in the commercial transportation of more than
20 equines per year to slaughtering facilities, except any individual
or other entity who transports equines to slaughtering facilities
incidental to his or her principal activity of production
agriculture.'' We believe that the definition of owner/shipper meets
the intent of the definition of person in the statute.
Many commenters objected that our proposed definitions for shipper
and owner narrowed the scope of the statute and would provide more
exemptions from the regulations than intended by Congress. The issue
that was mentioned most frequently was that our proposal would exclude
persons in the premarin mare urine (PMU) industry. They said these
persons would not be ``shippers'' because their principal activity
would be considered production agriculture. Others stated that the
premarin farmer would not be an ``owner'' because the farmer did not
purchase the foals or any other equines for the purpose of sale to a
slaughtering facility. For the purposes of these regulations, we
consider ``production agriculture'' to mean food or fiber production.
The principal activity of the PMU industry is the collection of urine
from pregnant mares for use by the pharmaceutical industry, which is
not production agriculture. Therefore, individuals or other entities in
the PMU industry who transport equines to slaughter incidental to this
business would be covered by our regulations unless they ship 20 or
fewer equines per year. To clarify that we consider production
agriculture to mean food or fiber production, the definition of owner/
shipper in this final rule specifies that production agriculture means
production of food or fiber.
In addition, we believe that the new definition of owner/shipper,
as previously explained, provides clarification as to the entities that
must comply with the regulations.
Some commenters appeared to believe that the term ``production
agriculture'' includes professional horse breeders, those who sell
riding or work horses, and persons who have riding stables or board
horses. They expressed concern that these individuals or other entities
would be exempt from the regulations if they transported unwanted foals
or other equines to slaughter. Some commenters assumed that trucking
companies would be exempt from the regulations if they moved equines to
slaughter for a farmer whose principal activity was production
agriculture. As explained above, we consider production agriculture to
mean food or fiber production. None of the entities listed above are
engaged in food or fiber production. Therefore, they would not be
exempt from the regulations unless they ship 20 or fewer equines per
year.
Some commenters objected to our exempting entities who transport
equines to slaughtering facilities incidental to their principal
activity of production agriculture. One commenter suggested that the
definition of shipper exempt only those who transport fewer than 10
equines per year, and another commenter stated that we should exempt
those who transport 50 or fewer equines per year instead of providing
an exemption for those entities involved in production agriculture. One
commenter objected that the proposed definition of shipper would allow
a farmer or other entity that engages in production agriculture to ship
any number of equines a year to slaughtering facilities without
complying with the regulations. Another commenter stated that there is
no legitimate reason for persons or entities who derive income from
production agriculture to be excluded from the regulations, and that
anyone who engages in commercial transportation should have to comply
with the regulations.
As stated previously, this final rule uses the term owner/shipper
and exempts only those entities who transport 20 or fewer equines to
slaughtering facilities per year and entities who transport equines to
slaughtering facilities incidental to their principal activity of
production agriculture (food or fiber production). As noted earlier,
Congress clarified its intentions concerning who should be covered by
the regulations in its conference report. The conference report states,
among other things, that the object of any prospective regulation would
be the individuals and companies that regularly engage in the
commercial transport of equines to slaughter and not the individuals or
others who periodically transport equines for slaughter outside of
their regular activity. In the definition of person in the statute,
Congress specifically exempted any individual or entity that
occasionally transports equines for slaughter incidental to the
principal activity of the individual or other entity in production
agriculture.
One commenter stated that the definitions of owner and shipper
should be amended to exclude slaughtering facilities. We disagree. If a
slaughtering facility possesses equines that will be transported to a
slaughtering facility, including its own, from its own feedlot or other
premises and the facility transports more than 20 equines a year, that
slaughtering facility is an owner/shipper and must comply with the
regulations.
Slaughtering Facility
We proposed to define slaughtering facility as ``A commercial
establishment that slaughters equines for any purpose.''
Many commenters objected that the definition of slaughtering
facility excludes facilities that were specifically intended by
Congress to be covered by the regulations (i.e., assembly points,
feedlots, and stockyards). Several commenters stated that auctions and
sales should be added to the definition of slaughtering facility. One
commenter stated that tracing a stolen equine would be easier if all
locations intended by Congress were regulated by APHIS.
The statute gives the Secretary authority to regulate the
commercial transportation of equines to slaughtering facilities, which
the statute indicates include assembly points, feedlots, or stockyards.
The Secretary may use his or her discretion within this authority. At
this time, we are defining slaughtering facility to mean only those
establishments where equines are slaughtered because (1) we believe
that equines moved to these facilities are most at risk of being
transported under inhumane conditions, and (2) USDA representatives are
available at these facilities to help enforce the regulations. Equines
moved to assembly points and stockyards are more likely to be taken
better care of because the purpose of the movement is for sale. Also,
equines may not be moved from these points to slaughter. Equines sent
to feedlots are going there for the express purpose of gaining weight.
Plus, we have no way currently to monitor movements from all points to
these intermediate destinations.
Regarding lost or stolen equines, we believe that the use of the
owner-shipper certificate will help ensure that there is documented
identification for each equine that is transported to a slaughtering
facility. To improve its usefulness for tracebacks, the owner-shipper
certificate will provide for the identification of any auction/market
where an equine is loaded. In addition, we plan to develop a database
of the information provided on the owner-shipper certificates.
[[Page 63591]]
One commenter stated that the definition of slaughtering facility
should exclude assembly points, feedlots, and stockyards to which the
equines are transported for feeding or holding if the time at such a
location is intended to exceed 14 days.
The definition of slaughtering facility in this rule excludes
assembly points, feedlots, and stockyards regardless of the amount of
time an equine spends there. However, equines moved from an assembly
point, feedlot, or stockyard to a slaughtering facility must be
transported in accordance with the regulations.
Commercial Transportation
We defined commercial transportation as ``The movement for profit
via conveyance on any highway or public road.''
One commenter stated that the definition of commercial
transportation should exempt transport by conveyances that are owned or
leased by slaughtering facilities that deliver equines to their own
slaughtering facilities.
As stated previously, if a slaughtering facility transports equines
to a slaughtering facility, including its own, the equines must be
transported in accordance with the regulations.
Euthanasia
We proposed to define euthanasia as ``The humane destruction of an
animal by the use of an anesthetic agent or other means that causes
painless loss of consciousness and subsequent death.''
One commenter stated that we should provide a list of acceptable
anesthetic agents, such as pentobarbital, choral hydrate, pentobarbital
combinations, and gunshot, and require them to be administered by a
trained person. This commenter added that succinylcholine curariform
drugs or other paralytic agents, cyanide, strychnine, ether, and carbon
monoxide should be prohibited.
We do not believe that listing anesthetic agents (pharmaceuticals
that provide a loss of sensation with or without loss of consciousness)
or requiring them to be administered by a trained person is necessary.
As explained later in this document, Sec. 88.4(b)(2) of this final rule
requires veterinary assistance to be provided by an equine
veterinarian. In addition, as explained later in this document,
Sec. 88.4(b)(2) of this final rule provides that, if an equine becomes
nonambulatory en route, the equine must be euthanized by an equine
veterinarian. Also, Sec. 88.4(e) of this final rule provides that, if
deemed necessary at any time during transportation to a slaughtering
facility, a USDA representative may direct an owner/shipper to take
actions to alleviate the suffering of an equine and this could include
obtaining the services of an equine veterinarian to treat an equine,
including performing euthanasia if necessary. An equine veterinarian
will be aware of and will use appropriate and humane anesthetic agents
for equines.
As mentioned in the proposed rule, we will allocate funds for
public information efforts and are developing educational materials
about the humane transport of equines.\1\ These materials will include
a list of equine veterinarians within the United States and their
telephone numbers.
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\1\ To obtain information about these educational materials,
contact the person listed under FOR FURTHER INFORMATION CONTACT.
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Section 88.2 General information
Federal Preemption
Proposed Sec. 88.2(a) stated that State governments may enact and
enforce regulations that are consistent with or that are more stringent
than the regulations.
Many commenters expressed concerns that the regulations could
preempt State laws that may be more stringent. Some pointed out that in
the preamble, under the heading ``Executive Order 12988,'' we stated
that the regulations would preempt all State and local laws and
regulations that are in conflict with the rule. Many commenters stated
that the Federal regulations should not preempt State regulations
unless compliance with the State regulations would make compliance with
the Federal regulations impossible. In particular, many commenters
expressed concern that the regulations would preempt existing State
bans on transporting equines in double-deck trailers.
States may promulgate and enforce similar or even more stringent
regulations to ensure the humane transport of equines to slaughtering
facilities. State or local laws that are more stringent than the
regulations will not necessarily conflict with the regulations. For
example, the regulations would not preempt existing States' bans on
transporting equines in double-deck trailers because double-deck
trailers are not required by our regulations. The drivers of
conveyances will be responsible for complying with any State laws that
prohibit the use in a State of double-deck trailers for the
transportation of equines to slaughter. State and local laws and
regulations would be ``in conflict'' with the regulations established
by this rule only if they made compliance with this rule impossible,
just as some commenters suggested.
Collection of Information
Proposed Sec. 88.2(b) stated that a USDA representative may request
of any individual or other entity information regarding the business of
the individual or other entity that transported the equines to
determine whether that individual or other entity is subject to the
regulations. The proposal further stated that the individual or other
entity will provide the information within 30 days and in a format as
specified by the USDA representative.
Several commenters stated that we should say ``must'' request
information regarding the business of the individual or other entity
that transported the equines and that we should state that the
individual or other entity ``must provide'' in place of ``will
provide.''
We believe that ``may'' is more appropriate in the first instance
because the USDA representative may not need to request information at
all times to make a determination of whether an individual or other
entity that is transporting the equines to a slaughtering facility is
subject to the regulations. However, as to using ``must provide,'' we
agree with the commenters and have amended the rule accordingly.
One commenter stated that we should clarify in Sec. 88.2(b) that a
USDA representative may request information from the entity that
actually transported the load of equines.
We agree. We have amended Sec. 88.2(b) to read as follows: ``To
determine whether an individual or other entity found to transport
equines to a slaughtering facility is subject to the regulations in
this part, a USDA representative may request from that individual or
other entity information regarding the business of that individual or
other entity. When such information is requested, the individual or
other entity who transported the equines must provide the information
within 30 days and in a format as may be specified by the USDA
representative.''
Section 88.3 Standards for Conveyances
Cargo Space
Proposed Sec. 88.3(a)(1) stated that the animal cargo space of
conveyances used for the commercial transportation of equines to
slaughtering facilities must be designed, constructed, and maintained
in a manner that at all times protects the health and well-being of the
equines being transported (e.g., provides
[[Page 63592]]
adequate ventilation, contains no sharp protrusions, etc.).
Many commenters stated that we should explain adequate ventilation,
and some of these commenters stated that adequate ventilation cannot be
provided in certain conveyances. Several commenters stated that the
requirements should address protection from the elements and extremes
of weather. One commenter suggested that trailers be modified to use
air scoops to control air flow and stated that trailers that cannot be
appropriately modified for operation in extreme weather conditions
should not be used when adverse conditions are likely to exist. This
commenter stated that a rating system could be used to rate trailers
for their suitability for summer or winter conditions and could
encourage transporters to invest in better-designed trailers.
As stated previously, the regulations are performance-based
standards. If a conveyance does not provide adequate ventilation or
other measures to protect the health and well-being of the equines in
transit, it must not be used.
The educational materials we are developing about humane transport
of equines will include information on ventilation and transport under
various weather conditions.
Several commenters stated that our proposal did not address proper
flooring in conveyances. Many commenters stated that the rule should
require flooring within a conveyance to be of such material (rubber,
neoprene, etc.) as to afford the animal secure footing at all times
under all conditions. One commenter stated that welding \3/8\-inch rods
at 12-inch intervals to the deck could prevent slipping. Many
commenters stated that ramps should also have nonslip (nonmetal,
nonskid) flooring. Several commenters stated that wood shavings,
sawdust, or sand could be used to provide secure footing.
There are many ways of providing secure footing and otherwise
protecting the health and well-being of equines in transit. We do not
believe it is necessary to specify how this must be done. Many of the
shippers or owners who transport equines safely and correctly already
use flooring that provides equines with secure footing. In addition,
the regulations will require the use of an owner-shipper certificate
that must describe any preexisting injury the equine has at loading. If
an equine arrives at a slaughter facility with an injury that was not
identified on the certificate, such as an injury from a fall due to
insecure footing, the owner/shipper may be found in violation of the
regulations and could be fined in accordance with Sec. 88.6. Also, the
educational program previously mentioned in this document will provide
owners, shippers, and other stakeholders in the equine slaughtering
industry with information regarding the safe transport of equines,
including information on flooring.
One commenter objected that our proposal did not require
conveyances to be cleaned of manure and urine. This commenter also
stated that Sec. 88.3(a)(1) should prohibit use of ropes, wires, or
chains in animal cargo space because an equine could become entangled
in or injured by them. This commenter further added that a conveyance
that transports equines should not have openings in the walls or sides
of the vehicle lower than 2 feet from the floor of the conveyance.
Under Sec. 88.3(a)(1), the conveyance used for the commercial
transportation of equines to slaughtering facilities must be maintained
in a manner that at all times protects the health and well-being of the
equines being transported. Maintenance of the conveyance would include
the removal of manure and urine, when appropriate. Similarly, owners/
shippers must ensure that the cargo space is free of any articles that
may injure the equines. If a conveyance has openings in the walls or
sides that cause harm to the equines, the conveyance must either be
altered or not used for the transport of equines to slaughter. We do
not believe that a comprehensive list of all articles or configurations
that could injure an equine is necessary or appropriate.
Segregation of Aggressive Equines
Proposed Sec. 88.3(a)(2) stated that the animal cargo space of
conveyances used for the commercial transportation of equines to
slaughtering facilities must include means of completely segregating
each stallion and each aggressive equine on the conveyance so that no
stallion or aggressive equine can come into contact with any of the
other equines on the conveyance.
Many commenters stated that partitions or individual stalls should
be required to segregate stallions and other aggressive equines, and
one of these commenters stated that the partitions should be at least 6
feet high. Several commenters stated that partitions should be required
for ``high strung'' equines. Several commenters stated that equines
should be transported in trailers with separate individual compartments
or haltered, and several commenters stated that equines could be tied
to prevent injuries due to fighting if not partitioned. One commenter
stated that tying equines will prevent rearing. One commenter stated
that stallions can be muzzled and tied.
Under Sec. 88.4(a)(4)(ii), stallions and aggressive equines are
required to be completely segregated from other equines during transit.
We do not believe that it is necessary to require owner/shippers to
separate equines into individual compartments. However, because this is
a performance-based standard, an owner/shipper could use a partition to
separate aggressive equines from other equines. As to tying equines, we
agree that tying an equine, in some cases, could prevent it from
rearing; however, the equines could still kick. Also, haltering and
tying an equine could pose a danger to the equine if it attempted to
rear and lost its balance and fell. The equine could be stepped on by
other equines or injure itself. As to the comment regarding muzzling
the equines, we assume that this commenter recommended muzzling and
tying stallions instead of segregating them. Tying up or muzzling an
equine is not practical for all equines going to slaughter because some
are not halter-broken. We believe the owner/shipper should have some
discretion in determining how to achieve segregation of stallions and
aggressive equines.
Interior Height
Proposed Sec. 88.3(a)(3) stated that the animal cargo space of
conveyances used for the commercial transportation of equines to
slaughtering facilities must have sufficient interior height to allow
each equine on the conveyance to stand with its head extended to the
fullest normal postural height.
Several commenters stated that the performance specifications were
too vague and could be subject to interpretation. One commenter
suggested that Sec. 88.3(a)(3) state, ``Have sufficient height to allow
each equine on the conveyance to stand in a normal relaxed posture with
its feet on the floor, without its head or any part of its body
contacting the ceiling of the conveyance. There must be sufficient
clearance to prevent injury or abrasions to the withers and the top of
the rump. Horses which arrive at their destination with reddened
abrasions or fresh injuries on the withers or the top of the rump would
be in violation.'' One commenter suggested ``* * * extended up to the
highest normal postural height so that its withers and top of its rump
will not come into contact with the ceiling, but in any case the
ceiling must be no less than 7 feet from the floor.'' Many commenters
stated that the hauling area of vehicles used to transport equines
should be a minimum of 7 feet high from the highest point
[[Page 63593]]
used by the animals for footing, to the lowest point in the ceiling,
not having a strut or brace, and no less than 6 feet 6 inches from the
highest point used by the animals for footing to the lowest point
having a strut or brace. Some commenters provided ranges of 6 feet 6
inches to 7 feet for the minimum heights in the hauling area of
conveyances, and several commenters stated that the height should be
adequate for equines to stand upright and provide for safe loading and
unloading. Many commenters stated that the intent of the statute was to
require a conveyance to have a ceiling height of no less than 6 feet 6
inches. One commenter stated that Sec. 88.4(a)(3) should state that, if
equines arrive at their destination with injuries indicative of
transport, the owner/shipper could be found in violation of the
regulations.
We believe that the performance-based standards in this rule
fulfill the intent of Congress under the statute to help ensure the
humane movement of equines in commercial transit to slaughtering
facilities. We have left the owner/shipper with the responsibility of
ensuring that the design, construction, and maintenance of the
conveyance used are adequate to ensure that the conveyance can safely
and humanely transport equines. If an equine arrives at its destination
with an injury, and the injury was caused by a violation of the
regulations, the owner/shipper may be assessed civil penalties of up to
$5,000 per violation for each equine injured. Accountability for
injuries that occur during transport due to violations is the reason
the owner-shipper certificate requires the documentation of any
preexisting injuries that are present prior to loading.
Doors and Ramps
Proposed Sec. 88.3(a)(4) stated that the animal cargo space of
conveyances used for the commercial transportation of equines to
slaughtering facilities must be equipped with doors and ramps of
sufficient size and location to provide for safe loading and unloading.
Many commenters stated that we should provide engineering-based
standards for doors and ramps. One commenter stated that ramps should
have sides, and another commenter stated that rails should be required.
One commenter stated that we could require commercial semi-trailers to
travel with their own external ramps. One commenter stated that
conveyances should be equipped with doorways and ramps of sufficient
height and width and location to provide for safe loading and
unloading, including in an emergency. One commenter suggested that
conveyances be equipped with ramps and floors which provide nonslip
footing and doors of sufficient width and height so that a horse that
is walking off the conveyance will not sustain visible external
injuries such as abrasions and lacerations. Another commenter stated
that we should require ramps, rails, and flooring to be maintained in a
good state of repair; fittings to be designed for quick and easy
operation and maintained in good working order; ramps and floors to be
covered with a nonmetal, nonskid surface; and flooring to be free of
rust and rot and designed to allow for appropriate drainage. This
commenter further stated that vehicles should be fitted with a ramp not
to exceed 25 degrees in slope and be of sufficient width and equipped
with solid sides of sufficient strength and height to prevent equines
from falling off, and that all portable or adjustable ramps should be
equipped with anchoring devices. This commenter also stated that
vehicles must be equipped with an additional exit ramp suitable for use
in emergencies and that conveyances should be equipped to provide for
the safest and least stressful loading and unloading. One commenter
stated that equines should be loaded in as quiet a situation as
possible and that the area surrounding the ramp should also be nonslip.
We believe the performance-based standards in this rule provide
clear guidance on what we mean by humane transport. Owner/shippers will
have to ensure the safe loading and offloading of equines because, if
equines sustain injuries while loading, in transit, or while
offloading, due to violations of the regulations, the owner/shipper may
be assessed civil penalties as set forth in Sec. 88.6.
Double-Deck Trailers
Proposed Sec. 88.3(b) stated that equines in commercial
transportation to slaughtering facilities must not be transported in
any conveyance that has the animal cargo space divided into two or more
stacked levels, except that conveyances lacking the capability to
convert from two or more stacked levels to one level may be used until
a date 5 years from the date of publication of the final rule. The
proposal also stated that conveyances with collapsible floors (also
known as ``floating decks'') must be configured to transport equines on
one level only.
Many commenters opposed the continued use of double-deck trailers.
Many of them stated that the original intent of the statute was to ban
the use of double-deck trailers for the transport of equines.
The statute does not prohibit the use of double-deck trailers or
any other conveyance; however, it requires the commercial transport of
equines to slaughter by humane methods.
Many commenters stated that continued use of double-deck trailers
is inconsistent with providing for the safe and humane transport of
equines to slaughter. Many commenters stated that our rule is
inconsistent with the State of New York's ban on the use of double-deck
trailers for the transport of horses. Several commenters stated that
APHIS should provide a shorter grace period for the use of double-deck
trailers, and some of these commenters suggested grace periods ranging
from 30 days to 2 years. One commenter suggested that, rather than
allow an across-the-board 5-year ``grandfather clause,'' APHIS should
require entities to show that they cannot practicably comply with an
immediate ban. This commenter stated that this requirement would
require the shipper to demonstrate how soon he or she could switch to a
single-deck trailer. Many commenters expressed concern that, with the
5-year exception, a shipper could begin to use a new double-deck
trailer or a double-deck trailer previously used to transport nonequine
livestock at any time during the 5-year period. Several commenters
stated that vehicles designed for horses should be required.
We believe that the grace period of 5 years is fair and reasonable.
As stated in the proposal, we arrived at a time period of 5 years after
discussions with interested parties, including representatives of the
trucking and equine industries, at two meetings hosted by humane
organizations. We believe that many of the double-deck trailers
currently used to transport equines will need to be replaced in
approximately 5 to 7 years.
We acknowledge that some double-deck trailers are likely to cause
injuries and trauma to equines; however, we are allowing their
continued use for the next 5 years in order to minimize economic losses
to those dependent on the use of double-deck trailers. Nevertheless, we
will hold owners and shippers responsible for any injuries that occur
during transport. If equines are injured during transport to
slaughtering facilities, even if that transport is in double-deck
trailers still allowed under the regulations, the owner/shipper could
be in violation of the regulations for each equine that is injured and
be assessed civil penalties as set forth in Sec. 88.6. Furthermore,
although our rule may not mirror
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regulations that were promulgated by certain States, this rule will not
preempt State regulations that have bans on the use of double-deck
trailers.
One commenter stated that the regulations are not clear as to
whether the 5-year grace period means that no violations can be written
for transporting tall equines in a double-deck trailer for 5 years. As
stated above, we will hold owners and shippers responsible for any
injuries that occur during transport if the injuries are due to
violations of the regulations.
One commenter stated that the use of double-deck trailers will lead
to a violation of Sec. 88.4 regarding the observation of equines every
6 hours and offloading every 28 hours because shippers will have little
incentive to comply with unloading requirements given the intrinsic
hazards to handlers and equines.
In the proposal, we stated that equines frequently sustain injuries
from being forced up or down the steep inclines of double-deck loading
ramps. However, if an owner/shipper continues to use a double-deck
trailer, he or she must take proper precautions to protect equines from
injury during loading and offloading while using ramps. In addition,
the owner/shipper must adhere to the prescribed observation period and
offloading times provided in Sec. 88.4(b)(2) and 88.4(b)(3),
respectively. The grace period for double-deck trailers is strictly a
phase-out period for the use of double-deck trailers and does not
provide protection from the regulations for owners or shippers for
injuries incurred by equines due to their transport in double-deck
trailers. Therefore, if equines are injured during transport to
slaughtering facilities, the owner/shipper may be found in violation of
the regulations for each equine that is injured and may be assessed
civil penalties as set forth in Sec. 88.6 even if the transport was
performed using a double-deck trailer.
One commenter stated that the regulations are not clear as to
whether double-deck trailers will be banned as of the date of the final
rule.
As of the effective date of this rule, conveyances with collapsible
floors (also known as ``floating decks'') must be configured to
transport equines on one level only and will not be prohibited. In
addition, if a conveyance is converted from two or more stacked levels
to one level, the conveyance will not be prohibited. Conveyances that
lack the capability to convert from two or more stacked levels to one
level may be used until 5 years from the date of publication of this
rule.
Many commenters stated that double-deck trailers can jeopardize
public safety and, therefore, should not be allowed.
We agree that if drivers operate double-deck trailers in an unsafe
manner, the trailers can pose a danger to humans, just as any vehicle
that is operated in an unsafe manner. In Sec. 88.4, paragraph (b)
states that during transit to the slaughtering facility, the owner/
shipper must drive in a manner to avoid causing injury to the equines.
This is a performance-based standard that is meant to protect the
equines from injury caused by poor driving habits and should help
ensure that double-deck trailers are driven in a safe manner. Our
educational program regarding the humane transport of equines will
include safe driving procedures.
Several commenters stated double-deck trailers should not be
prohibited after 5 years if they can be altered to accommodate equines
or converted to single level.
Double-deck trailers do not provide adequate headroom for equines,
with the possible exception of foals and yearlings. We do not believe
that trailers that have two or more permanent levels that are not
collapsible can be adequately altered to accommodate adult equines,
especially tall equines. A tall equine can be 8 feet tall to the top of
its head when standing on all four legs and close to 12 feet tall when
rearing. As stated in the proposal, the overpasses on most U.S.
interstate highways are between 14- and 16-feet high. We are not
prohibiting, either immediately or after 5 years, the use of double-
deck trailers that can be converted to a single level.
Several commenters said that if equines are sorted by size, double-
deck trailers could continue to be used. Other commenters stated that
we should require only that ceilings be of adequate height, which one
commenter maintained would prohibit only unusually tall equines from
the double-deck portion of the trailers. One commenter stated that
Sec. 88.3(b) should require only that conveyances be of sufficient
interior height to allow each equine to stand with its head extended to
the fullest normal postural height.
Again, we do not believe that double-deck trailers provide
sufficient headroom for horses other than foals and yearlings.
Two commenters stated that research has shown that stress levels
and physiological factors are improved on double-deck trailers versus
single-deck trailers.
Upon completion of the USDA research, we determined that rubber
padding used in the single-deck trailers may have caused physiological
differences between horses transported in double-deck trailers and
horses transported in single-deck trailers. The rubber padding lined
the interior walls of the single-deck trailer and limited the
ventilation capacity within the conveyance. However, this discovery may
support the use of rubber padding to decrease the exposure of equines
to extremely low temperatures during their transport in the winter.
Several commenters opposed the prohibition on double-deck trailers
because single deck, or ``straight-floor,'' trailers do not hold as
many horses. Several commenters stated that they now use the double-
deck trailers for horses and other livestock and that going to a single
deck, or ``straight-floor,'' trailer would not be economical for them
because they hold fewer animals. Thus, our rule would cause them
economic hardship. One commenter stated that, since it will still be
legal to transport livestock other than equines in double-deck
trailers, and to transport equines to destinations other than
slaughtering facilities in double-deck trailers, shippers will have no
economic incentive to trade in double-deck trailers for single-deck
trailers. The commenter maintained that the rule will, therefore,
impede the transport of equines to slaughter by reducing the number of
vehicles available for this transport and increasing the costs of
transporting equines to slaughter.
We acknowledge that double-deck trailers can carry more equines and
other livestock than single-deck trailers. We are allowing the
continued use of double-deck trailers for the next 5 years in order to
minimize economic losses to those dependent on the use of double-deck
trailers. We do not believe that equines can be safely and humanely
transported on a conveyance that has an animal cargo space divided into
two or more stacked levels. As stated in the proposal, double-deck
trailers can continue to be used to transport other commodities,
including produce and livestock other than equines. Also, owners can
sell their serviceable trailers at fair market value to transporters of
commodities other than equines.
Section 88.4 Requirements for Transport
Food and Water Prior to Transport
Proposed Sec. 88.4(a)(1) stated that, prior to the commercial
transportation of equines to a slaughtering facility, the shipper or
owner must, for a period of not less than 6 consecutive hours prior to
the equines being loaded on the
[[Page 63595]]
conveyance, provide each equine appropriate food (i.e., hay, grass, or
other food that would allow an equine in transit to maintain well-
being), potable water, and the opportunity to rest.
Several commenters expressed concern that the proposed rule would
not require the 6-hour period of feed, water, and rest to occur
immediately preceding loading for transport. One commenter suggested
saying ``not more than 6 consecutive hours prior to the equines being
loaded.'' One commenter suggested inserting the words ``for a period of
at least 6 consecutive hours immediately. * * *''
It was our intent in Sec. 88.4(a)(1) to require a 6-hour time
period immediately preceding the loading of the equines. To make that
clearer, we have added the word ``immediately'' before the word
``prior'' in the rule portion of this document.
Several commenters stated that the proposed provisions for access
to food and water were too vague. One commenter objected to the lack of
specific information regarding the quality or quantity of food and
water to be provided. Two commenters stated that equines should be
grouped appropriately to ensure that all of them have uninhibited
access to food and water, and that water should be ad libitum, and one
other commenter stated that the equines should have unimpeded access.
One commenter suggested that we require ``free access to potable water
ad libitum.''
The rule requires that each equine be provided appropriate food and
potable water. This means that each equine must have access to the food
and water. Also, the rule requires ``appropriate'' food. We do not
believe that it is necessary to prescribe the quality or quantity of
food that must be provided or to require grouping of animals. We
believe that the owner/shipper can determine the quality and quantity
of food and water that should be provided to equines and the best
methods to ensure that all equines have access to food and water.
One commenter stated that requiring owners or shippers to provide
equines with access to feed within 6 hours of transport could be a
potential problem due to the possibility of impaction. This commenter
stated that there are anecdotal accounts linking impaction to feed and
dehydration and that requiring feed may need more study.
We are aware that impaction can occur under certain circumstances;
however, impaction has been associated with inadequate intake of water.
(Impaction is the blockage of a portion of the digestive system formed
by digested material.) However, we believe that allowing equines access
to appropriate food and potable water for 6 hours immediately prior to
loading is unlikely to result in impaction and is essential to ensure
that the equines do not undergo serious physiological distress during
transit.
One commenter stated that the minimum rest period prior to loading
should be 16 hours with unlimited access to water, good quality hay,
and shelter, and another commenter stated that water should be provided
within 12 hours of transport.
Based on one of the USDA-commissioned research studies, we found
that equines that were provided water for 6 hours immediately before
transport did better than those that were provided water for more than
6 hours.
One commenter stated that feedlots practice dry lotting, which
means that equines are not fed immediately prior to slaughter, and the
regulations are not clear as to whether the practice will be prohibited
when the rule is finalized. One commenter stated that providing food
and water is not necessary if equines are going directly to processing
from the truck.
The regulations at Sec. 88.4(a)(1) require that equines be provided
food and water prior to loading for transport to slaughter, and
Sec. 88.5 requires that equines be given access to food and water after
being unloaded at the slaughtering facility. As a consequence, dry
lotting will be prohibited.
One commenter stated that equines purchased at sale barns may have
already been deprived of water for quite some time. This commenter
stated that the regulations are not clear as to how USDA
representatives will verify that each equine has received the required
6-hour access to food and water and whether USDA representatives will
examine equines for evidence that they received preloading services
upon arrival at the slaughtering facility. One commenter stated that we
should not trust the owner-shipper statement that claims an equine was
provided access to appropriate food, potable water, and rest prior to
loading.
Owners/shippers are responsible for ensuring that equines have
access to food, water, and rest for 6 hours immediately prior to
loading on a conveyance for transport to a slaughtering facility. In
accordance with Sec. 88.4(a)(3), the owner/shipper must certify on the
owner-shipper certificate for each equine being transported that the
equine had access to food, water, and rest for the 6 hours immediately
prior to loading into the conveyance. In addition, in accordance with
Sec. 88.5(a)(3), a USDA representative must be given access to the
equines upon arrival at the slaughtering facility. If the USDA
representative suspects that the equines are suffering from the effects
of a lack of food, water, or rest, he or she can question the owner/
shipper regarding the care the equines received prior to and during
transport. If we determine that an owner/shipper did not comply with
any requirement, the owner/shipper may be subject to civil penalties of
up to $5,000 per violation per equine as set forth in Sec. 88.6. In
addition, if we determine that the owner/shipper falsified the form,
the owner/shipper could be subject to a fine of not more than $10,000
or imprisonment for not more than 5 years or both. (The penalty for
falsification of the owner-shipper certificate is stated on the owner-
shipper certificate (18 U.S.C. 1001).)
USDA Backtag
Proposed Sec. 88.4(a)(2) stated that, prior to the commercial
transportation of equines to a slaughtering facility, the shipper or
owner must apply a USDA backtag to each equine in the shipment.
One commenter stated that we should remove the requirement for a
backtag and require each equine to be marked in a manner that provides
a unique identification of the animal.
Backtags provide a unique identification for each animal. They are
easy to apply and easy to read. We believe that requiring their use
will facilitate identification of equines during loading, unloading,
and in spaces where they are congregated. If an equine has a unique
identifying mark such as a brand or tattoo, the owner-shipper must
record the identifying mark on the owner-shipper certificate along with
the USDA backtag number.
One commenter stated that an identification tag should be attached
to each equine and that the tag should provide the identification of
the owner/shipper and the license plate number of the conveyance.
A USDA backtag will be applied to each equine and the number will
be recorded on the owner-shipper certificate for each equine. The
owner-shipper certificate will contain the name, address, and telephone
number of the owner/shipper. In addition, the vehicle license number or
registration number of the conveyance will be recorded on the owner-
shipper certificate. Because the USDA backtag provides a unique
identification for each animal, the backtag will allow us to determine
the identification of the
[[Page 63596]]
owner/shipper should that become necessary.
Owner-Shipper Certificate
Proposed Sec. 88.4(a)(3) stated that, prior to the commercial
transportation of equines to a slaughtering facility, the shipper or
owner must complete and sign an owner-shipper certificate for each
equine being transported. The proposal also stated that the owner-
shipper certificate for each equine must accompany the equine
throughout transit to the slaughtering facility and must include
specified information, including, under Sec. 88.4(a)(3)(v)
(redesignated as Sec. 88.4(a)(3)(vii) in this final rule), a statement
of the equine's fitness to travel (a statement that the equine is able
to bear weight on all four limbs, is able to walk unassisted, is not
blind in both eyes, is older than 6 months of age, and is not likely to
give birth during the trip).
One commenter maintained that an owner-shipper certificate is
unnecessary paperwork, because, upon arrival at the slaughtering
facility, the USDA representative can check the equines and conveyance
and address any problems noted with the owner of the equines.
As explained in our proposal, we have several reasons for requiring
the owner-shipper certificate. They make the owner/shipper responsible
for ensuring that the equines are fit to travel and have had adequate
food, water, and rest prior to transport; provide a way for the USDA
representative at slaughtering facilities to determine whether an
injury occurred en route; assist in the prosecution of persons found to
be in violation of the regulations; and facilitate the traceback of any
stolen equines.
Owner-Shipper Certificate; Who Signs
Many commenters expressed concern about an owner or shipper
preparing the certificate for movement. In particular, with respect to
the statement of fitness for travel, they stated that the owner or
shipper may have an economic incentive to certify the equines fit to
travel. Many commenters stated that a professional should certify an
equine's fitness to travel prior to the transport to ensure the equine
is in a reasonable state of health at the beginning of the trip. (Some
of these commenters listed people such as a licensed veterinarian,
accredited veterinarian, USDA representative, or licensed veterinary
technician. One commenter added certified humane officers and brand
inspectors.) Many commenters stated that the fitness to travel should
be certified by a veterinarian because an owner/shipper could ship a
lame equine without identifying the injury on the certificate and state
that injury occurred en route if lameness is noted as the equine is
unloaded at the slaughtering facility. Several commenters stated that a
lack of veterinary certification could mean that the USDA
representative at the slaughtering facility would be unable to
determine whether the injuries were preexisting or a result of
transportation. One commenter stated that without medical or veterinary
knowledge or training, there may be mistakes or inaccurate entries on
the owner-shipper certificate. One commenter stated that the owner-
shipper certificate requires subjective determinations that cannot be
made by nonveterinary personnel. Many commenters stated that the
original intent of the statute was to ban the shipment of sick and
injured horses by having a veterinarian inspect the horses, rather than
the owner, who stands to lose money if the horse is not shipped.
We considered requiring a veterinarian to certify each equine's
fitness to travel. However, in most cases, because of the lack of a
client-patient relationship, the veterinarian would not have liability
coverage. We also determined that use of accredited veterinarians would
be inappropriate because, as provided in 9 CFR part 161, they perform
functions required by cooperative State-Federal disease control and
eradication programs. We also decided, however, that a veterinarian was
not needed to provide the information we require on the owner-shipper
certificate. This information could be provided by any person who makes
careful observation of an equine. However, if an owner/shipper wishes
to have a veterinarian examine an equine prior to loading the equine
for slaughter, the owner/shipper may make those arrangements.
If an equine arrives at a slaughtering facility with an injury that
should have prevented the equine from being transported (e.g., if the
equine cannot walk unassisted), the owner/shipper may be found in
violation of the regulations and could be subject to civil penalties as
set forth in Sec. 88.6. In addition, if an equine arrives at a
slaughtering facility with an injury that was not identified on the
owner-shipper certificate, the USDA representative, who in most cases
will be a veterinarian, will make a professional judgment as to the
length of time an equine suffered the lameness or the age of a wound
and its possible cause. If the USDA representative determines that the
injury occurred en route or was present prior to loading the equine on
the conveyance, the owner/shipper may be found in violation of the
regulations and subject to civil penalties as set forth in Sec. 88.6.
Any owner/shipper found to have falsified a certificate could also be
subject to a fine of not more than $10,000 or imprisonment for not more
than 5 years or both, in accordance with 18 U.S.C. 1001.
A few commenters stated that allowing owners or shippers to
complete the owner-shipper certificate is inconsistent with other
regulations that require an accredited veterinarian to sign a
certificate or that require a health certificate for the interstate
movement of equines.
Other Federal regulations regarding the interstate movement of
equines, for example, those for equine infectious anemia (9 CFR part
75), are intended to prevent the interstate spread of communicable
diseases of equines. This rule does not pertain to a disease control or
eradication program, and veterinary medical training is not required to
complete the owner-shipper certificate.
One commenter asked if there would be a penalty for the owner or
shipper if he or she is mistaken about an equine's fitness to travel.
One commenter stated that an owner or shipper should not be found in
violation of the regulations if he or she makes a mistake on the owner-
shipper certificate or neglects to mark a box, such as the sex of the
equine.
If an owner/shipper is unsure about an equine's fitness to travel,
he or she should seek the proper guidance from a veterinarian or other
qualified individual. If an owner/shipper makes a mistake on the owner-
shipper certificate or fails to accurately complete the certificate,
APHIS will attempt to determine whether the mistake or failure to
accurately complete the certificate was inadvertent or an attempt to
circumvent the regulations. We understand that, at times, someone who
fills out a certificate may make a minor error, and we do not intend to
bring a case against someone solely because he or she made a minor
clerical error. However, falsification of the owner-shipper certificate
is a criminal offense that may result in a fine of not more than
$10,000 or imprisonment for not more than 5 years or both because the
owner-shipper certificate is a Federal document.
In the proposal, Sec. 88.4(a)(3)(iii) (redesignated as
Sec. 88.4(a)(3)(v) in this final rule) required that the owner-shipper
certificate provide a description of the equine's physical
characteristics, including such information as sex, coloring,
distinguishing markings, permanent brands, and electronic means of
identification.
[[Page 63597]]
Several commenters stated that, at the point of loading, a USDA
representative should inspect the equines to verify the description of
the equine on each owner-shipper certificate.
Shippers and owners are responsible for the accuracy of the
information on the owner-shipper certificate for each equine being
transported. We believe that shippers and owners are capable of
providing an accurate description of an equine's physical
characteristics. If we find that an owner/shipper has provided false
information on an owner-shipper certificate, the owner/shipper may be
found in violation of the regulations and be assessed civil penalties
for each equine as provided in Sec. 88.6. In addition, if an owner/
shipper provides false information, the owner/shipper could be subject
to criminal charges that may result in a fine of not more than $10,000
or imprisonment for not more than 5 years or both, under 18 U.S.C.
1001.
Owner-Shipper Certificate; When Signed
One commenter stated that fitness to travel should not be
determined more than 48 hours prior to loading.
We agree that if an equine's fitness to travel is assessed too far
in advance, there is a chance that an equine that becomes ill or
injured would not be noted. The fitness to travel should be determined
during the period prior to the loading of equines into the conveyance.
Ideally, this determination should be made when equines are provided
appropriate food, potable water, and rest in accordance with
Sec. 88.4(a)(1). In this final rule, we have reworded the provision
concerning an equine's ``fitness to travel'' to clarify that we mean at
the time of loading (see Sec. 88.4(a)(3)(vii)).
Owner-Shipper Certificate; Identification of Owner, Shipper, Consignee,
Vehicle
Under proposed Sec. 88.4(a)(3), the shipper's name and address,
and, if the shipper is not the owner of the equines, the owner's name
and address, and a description of the conveyance, including the license
plate number, must be included on the owner-shipper certificate.
One commenter stated that we should require the owner-shipper
certificate to state the ultimate destination (city, State, and name of
business) as well as any anticipated intermediate stopping points to
allow USDA and law enforcement personnel to intercept a conveyance en
route to a slaughtering facility. This commenter also suggested that
the expected driving route should be filed with a copy of the owner-
shipper certificate at the point of sale and departure.
We agree that the destination of each equine should be required on
the owner-shipper certificate and our certificate includes fields for
that information. We have added a requirement to Sec. 88.4(a)(3) that
the owner-shipper certificate provide the name, address (street
address, city, and State), and telephone number of the receiver
(destination). We do not believe that listing intermediate stopping
points on the owner-shipper certificate is necessary, however. There
are only a few slaughtering establishments for equines. Most drivers
follow a set route to the slaughtering facility to which they transport
equines and, as a result, USDA representatives or other law enforcement
officials will be able to locate the conveyance.
Several commenters stated that it is unnecessary to require a
separate owner-shipper certificate for each equine in a shipment or to
require a new owner-shipper certificate for each segment of the trip.
They stated that, in the case of equines that are unloaded en route,
information about the equines' fitness to travel and other required
information could be added to the original certificate if the
certificate was designed to accommodate more than one trip segment.
We do not believe that there would be circumstances that an owner/
shipper certificate would unload equines except in an emergency or as
required in Sec. 88.4(b)(3) for equines that have been on a conveyance
for 28 hours. Under these circumstances, we would want the owner/
shipper to reassess each equine's fitness to travel prior to reloading
onto the conveyance.
We require an owner-shipper certificate for each equine on the
conveyance because the certificate provides a description of the
equine. These descriptions can help us trace lost or stolen equines.
One commenter stated that the owner-shipper certificate should
include the telephone number of the consignor (shipper) and consignee's
(receiver/destination) businesses.
We agree. There is a field for this information on the certificate,
and we have added that requirement to Sec. 88.4(a)(3).
Owner-Shipper Certificate; Description of the Equine
As noted earlier, proposed Sec. 88.4(a)(3)(ii) required the owner-
shipper certificate to include a description of the equine's physical
characteristics, including such information as sex, coloring,
distinguishing markings, permanent brands, and electronic devices that
could be used to identify the equines.
One commenter stated that the owner-shipper certificate should
include additional identifying information, including the breed or type
of equine, color combinations, and the location and relative size of
any markings, brands, tattoos, or scars, as well as the approximate age
of the equine. The commenter stated that this information could assist
individuals who are tracing missing or stolen animals. One commenter
stated that a description of any physical preconditions should be
included on the owner-shipper certificate. One commenter stated that we
should require tattoos, especially lip tattoos, to be identified on the
certificate.
The owner-shipper certificate contains fields for the owner/shipper
to indicate the breed and color of the equine. If a specific breed or
color is not indicated on the certificate, there is a field marked
``Other'' that should be completed. Also, on the owner-shipper
certificate, the field for identifying marks specifies ``brands,
tattoos, and scars.'' In this final rule, Sec. 88.4(a)(3) specifies
that the owner-shipper certificate should include the breed of the
equine and any tattoos that are present. We believe that most people
who are familiar with handling equines will also add any facial or leg
markings, as appropriate; however, we have added ``facial or leg
markings'' to the field for ``Identifying Marks'' on the owner-shipper
certificate. The certificate also provides space for recording any
preconditions. We are not requiring an age to be indicated because an
owner/shipper may have to guess the age of the equine. People use the
teeth of an equine to determine its age, but, in most cases, there are
many variables such as teeth grinding and diet that can affect the
accuracy of the assessment.
Who Determines Fitness To Travel
One commenter stated that studies have shown that the majority of
injuries to equines do not occur during transport or marketing but
occur at the point of origin, prior to transport, due to either neglect
or abuse. Several commenters provided examples of injuries that equines
exhibited upon their arrival at a slaughtering facility that were
determined to have occurred at the point of origin. These examples
included equines that were emaciated, had severe founder, broken legs,
deformities, etc. Several commenters provided examples of injuries,
such as illness and broken limbs, that equines
[[Page 63598]]
exhibited at sales or auctions and that were caused by owners. The
commenters stated that the equines were shipped even though they were
unfit to travel. One commenter provided examples of people who have a
history of transporting injured equines, transporting equines without
water, or transporting equines in conveyances that are unsafe. A number
of commenters suggested that APHIS should regulate the care of equines
prior to loading.
This rule prohibits the commercial transport to slaughter of
equines that are not found fit to travel under Sec. 88.4(a)(3)(vii).
This rule also requires that the equines be provided food, water, and
rest for the 6 hours immediately prior to transport under
Sec. 88.4(a)(1). We believe that these regulations will prevent most
animals with point-of-origin injuries from being moved to slaughtering
facilities via commercial transportation.
Criteria for Fitness To Travel
As noted above, we proposed to require a statement of the equine's
fitness to travel on the owner-shipper certificate for each equine.
Proposed Sec. 88.4(a)(3)(v) (redesignated as paragraph (a)(3)(vii) in
this final rule) stated that equines must be able to bear weight on all
four limbs, be able to walk unassisted, have sight in at least one eye,
be older than 6 months of age, and not be likely to give birth during
the trip.
One commenter suggested that we remove the reference to a
``statement of fitness to travel'' because that language implies that
we are requiring untrained people to make a subjective determination.
We agree that, by itself, that phrase is subjective. However, the
criteria for making that determination are objective. The phrase simply
states the purpose of the criteria that the owner/shipper must consider
prior to loading equines on a conveyance.
Several commenters objected to, or suggested changes to, the
criteria. Some stated that the proposed regulations would allow the
shipment of blind animals that are unable to defend themselves, board a
conveyance, or travel without injury, as well as allow the transport of
equines that are extremely ill, diseased, injured, incapacitated, or
not physically fit. One commenter stated that equines that exhibit
obvious disease, injuries, or similar indications of ill health should
not be transported unless they are being removed from a facility for
humane destruction due to the disease or injury as determined by a
certified veterinarian. One commenter stated that we should prohibit
the transport of any equine with a known physical problem likely to
cause collapse and that animals that are in immediate and severe
distress and determined unfit to travel by an accredited veterinarian
should be immediately and humanely euthanized. One commenter stated
that, at minimum, the regulations should require that an equine bear
weight evenly on all four limbs as determined by a veterinarian.
In Sec. 88.4, paragraph (a)(3)(vii) prohibits the transport of
equines that are blind in both eyes. However, equines that are blind in
one eye can be transported safely and humanely when correctly loaded
and placed on the conveyance. In addition, paragraph (a)(3)(vii)
requires that equines be able to bear weight on all four limbs, be able
to walk unassisted, be older than 6 months of age, and not be likely to
give birth during the trip. These requirements will, in most cases,
prohibit the transport of equines that are extremely ill or diseased,
injured, or incapacitated.
Two commenters stated that, to ensure that equines are fit for
travel, the owner-shipper certificate should be modified to state,
``Horse is able to walk unassisted without physical prodding or marked
difficulty.'' The commenters stated that equines are often forced to
walk onto vehicles through the use of whips, hard slaps, kicks, or
other devices and that ``unassisted'' is not defined and could be
interpreted to allow the use of whips, hard slaps, etc. One commenter
stated that an equine that cannot enter a conveyance under its own
power should not be loaded.
In Sec. 88.4, paragraph (a)(3)(vii) states that the equine must be
able to bear weight on all four limbs and be able to walk unassisted.
Unassisted means that the equine must be capable of climbing a ramp or
entering a conveyance with ease and under its own power. In addition,
Sec. 88.4(c) states that the equines must be handled in a manner that
does not cause unnecessary discomfort, stress, physical harm, or
trauma.
One commenter stated that the owner-shipper certificate should use
language similar to performance-based standards, i.e., require that the
equine arrive in a condition that meets the requirements of animal
cruelty laws.
We believe that a reference to animal cruelty laws would not
specifically address the needs of equines being transported to
slaughter. We believe that our requirements are clear.
Many commenters stated that pregnant mares, late-term pregnant
mares, foals of varying ages (up to 1 year), and foals less than 600
pounds should not be transported to slaughtering facilities.
Equines that are likely to give birth during transport can develop
serious complications if they foal during transport. In addition, the
mare's and the foal's well-being could be in danger. Among other
things, Sec. 88.4(a)(3)(vii) states that an equine cannot be
transported if it is likely to give birth during the trip. If an owner/
shipper thinks it's possible that a mare is close to delivering, the
owner/shipper should not put the mare on the conveyance. If an owner/
shipper transports a late-term pregnant mare that gives birth during
transport, the owner/shipper may be found in violation of the
regulations. In addition, the owner/shipper could be found to have
falsified the owner-shipper certificate. We believe that, as long as
the mare is not likely to give birth during transport, it can be safely
transported.
As to the transport of foals to slaughtering facilities,
Sec. 88.4(a)(3)(vii) prohibits, among other things, the transport of
equines less than 6 months of age to a slaughter facility. We believe
that foals older than 6 months of age, including those that weigh less
than 600 pounds, can be transported safely and humanely if the foals
are loaded in a proper manner.
One commenter stated that mares should not be taken from their
foals and shipped to slaughter if their foals are under 4 months of
age.
We do not believe that it is necessary to prohibit the shipment of
mares that will leave 4-month-old foals on the premises of origin.
Foals are weaned from 1 to 9 months of age, depending on the standard
practice of the premises of operation. Weaning is extremely traumatic
at any age and could be in direct proportion to the time the mare and
foal spend together. From this standpoint, separating a mare from its
foal at 4 months may be less stressful for the mare and the foal than
when the foal is older.
Several commenters expressed concern that shoed equines, especially
equines with shoes on their hind feet, could injure other equines and
said they should not be transported.
We are aware that equines can be injured when kicked by other
equines that are wearing shoes. In addition, shoes can be slippery in a
conveyance if the proper flooring is not provided. As stated
previously, these regulations are performance-based standards. We
believe that shoed equines may be transported safely if the owner/
shipper takes proper precautions and, therefore,
[[Page 63599]]
will not prohibit the transport of shoed equines. However, the owner/
shipper must ensure that equines are not injured during transport. Any
injuries that an equine incurs during transport may result in the
owner/shipper being found in violation of the regulations and subject
to civil penalties as provided in Sec. 88.6.
One commenter stated that the regulations will require owners to
keep lame and debilitated equines or pay for euthanasia rather than
sell the equines to slaughter to salvage some value.
The regulations pertain to those individuals who meet the
definition of owner/shipper. An individual or entity is exempt from
these regulations if the individual or entity transports 20 or fewer
equines to slaughtering facilities or transports equines to
slaughtering facilities incidental to his or her principal activity of
production agriculture.
Owner-Shipper Certificate; Identification of Special Handling Needs
Proposed Sec. 88.4(a)(3)(vi) (redesignated as Sec. 88.4(a)(3)(viii)
in this final rule) stated that the owner-shipper certificate should
include a description of anything unusual with regard to the physical
condition of the equine, such as a wound or blindness in one eye, and
any special handling needs.
One commenter stated that special handling needs means taping and
wiring horses mouths for the entire journey, which are practices that
should be prohibited. Many commenters stated that taping shut the
mouths and/or eyes of aggressive horses is inhumane and should be
prohibited. One added that taping the nostrils of equines should be
banned. One commenter stated that the meaning of special handling is
not clear and that we should remove those words from
Sec. 88.4(a)(3)(vi). This commenter questioned whether a determination
by APHIS that an equine required special handling would override a
different opinion expressed on an owner-shipper certificate.
By special handling needs, we meant that an owner/shipper should
provide any information that should be taken into account to ensure the
safe and humane transport of the equine. For example, an owner/shipper
could use this space to indicate that an equine is blind in one eye,
which would alert those handling the equine to be cautious when
handling the horse. We have slightly reworded the provision concerning
special handling needs in this final rule to clarify what we mean.
Special handling needs should in no way be interpreted to mean
instructions for taping or wiring the mouths or taping the eyes or
nostrils of equines. We do not condone such practices. In fact,
Sec. 88.4(c) of the regulations requires the handling of equines in a
manner that does not cause unnecessary discomfort, stress, physical
harm, or trauma to the equines. The educational program that we are
developing will explain appropriate techniques for the humane transport
of equines to slaughtering facilities.
Owner-Shipper Certificate; Date, Time, and Place of Loading
Proposed Sec. 88.4(a)(3)(vii) (redesignated as Sec. 88.4(a)(3)(ix)
in this final rule) stated that the shipper or owner must indicate on
the certificate the date, time, and place the equines were loaded.
Two commenters stated that the departure time should be noted and
one commenter stated that a third party should verify the exact time
and location of loading.
We believe that the time each equine was loaded onto the conveyance
is more essential than the time of departure because, based on
Sec. 88.4 (b)(2), any equine that has been on the conveyance for 28
consecutive hours, whether the conveyance was in motion or not, must be
offloaded and provided appropriate food, potable water, and the
opportunity to rest for 6 consecutive hours.
We do not believe that a third party should be required to verify
the time and location of loading. If an owner/shipper falsifies the
owner-shipper certificate, the falsification may be a criminal offense
that could result in a fine of not more than $10,000 or imprisonment
for not more than 5 years or both.
Owner-Shipper Certificate; Other Comments
One commenter stated that APHIS should require the owner-shipper
certificate to be legibly filled out in ink or typed and should
prohibit script writing other than for the signature. One commenter
stated that the departure time should be written in ink.
We agree that the owner-shipper certificate must be legibly
completed. We are amending Sec. 88.4(a)(3) to require the owner/shipper
to type or legibly provide in ink the information required on the
owner-shipper certificate. If the owner-shipper certificate is not
legibly completed, the owner/shipper may be assessed a civil penalty.
One commenter wanted the certificate to state that the equine was
loaded under the supervision of the owner/shipper. The commenter also
requested that the certificate include a statement that the horse's
condition, gender, and size were taken into account in positioning it
in the vehicle.
We do not believe it is necessary to require a statement that the
equine was loaded under the supervision of the owner/shipper. The
owner/shipper must complete and sign the owner-shipper certificate, so
he or she must be present. We do not believe that adding a qualifying
statement that the equine's condition, gender, and size were taken into
account when loading is necessary. However, our educational program
will include instruction on the proper loading and offloading of
equines, as well as how to position animals so that smaller or thin
equines or ponies are not harmed by larger equines.
Another commenter also stated that the owner-shipper certificate
should include the name and address of the shipper and the owner if the
owner is not the shipper.
We do not believe that the owner has to be identified on the
certificate if he or she is not the shipper. In most cases where the
owner is not the shipper, the shipper will have purchased the equines
from an auction/market. The records maintained at most auction/markets
include the identification and address of the owner of the equines
should it become necessary to trace the owner.
One commenter stated that funds should be set aside for a pamphlet
with clear instructions on the proper handling of equines and
completion of the owner-shipper certificate.
The educational program we are developing in conjunction with this
rule will provide guidelines for the humane transport of equines to
slaughtering facilities, including instructions for completion of an
owner-shipper certificate.
Segregation of Stallions and Aggressive Equines
Proposed Sec. 88.4(a)(4)(ii) required that each stallion and any
aggressive equines be segregated on the conveyance to prevent them from
having contact with any other equine on the conveyance.
Many commenters expressed concern that our requirement for the
segregation of stallions would encourage point-of-sale castration. They
recommended that our rule be amended in some way to discourage point-
of-sale castration. One commenter stated that the regulations should
not allow a stallion to be gelded within 2 weeks preceding transport
unless it is segregated and accompanied by a signed and dated
veterinary certificate.
We do not believe that the regulations need to address point-of-
sale castration. A recovery period of 21 days or more is
[[Page 63600]]
necessary for the site of castration to heal. If an equine arrives at
slaughter with a fresh and open wound, the equine's value will decline,
and the owner/shipper will lose money. The healthier an equine is upon
arrival at the slaughtering facility, the more that equine is worth. In
addition, stallions retain their aggressive behavior for a period of at
least 30 days after castration. Therefore, an owner/shipper could not
circumvent the requirement for segregating a stallion by performing a
point-of-sale castration because the equine would still be aggressive,
and aggressive equines must be segregated from other equines in the
conveyance.
Many commenters stated that equines should be segregated by size
and/or sex, several commenters added age, and one commenter added
height and weight. One commenter stated that all equines 14.2 hands or
less should be shipped on separate conveyances from larger equines. One
commenter stated that thin, weak, and old horses should be separated.
As stated previously, we designed performance-based standards to
ensure that equines have sufficient space and are protected from injury
during transport. We do not believe it is necessary to spell out in the
regulations exactly how this must be accomplished. However, the
educational program we are developing will show appropriate ways to
transport equines and will address loading by size. It is worth noting
that, if an equine is extremely thin, weak, or old, the equine may not
be fit to travel as required by Sec. 88.4(a)(3)(vii).
Some commenters stated that we should not require segregation of
aggressive equines. One commenter stated that we may have gone beyond
our authority under the statute to require the segregation of
aggressive equines, along with stallions. Several comments stated that
it was unclear what we meant by ``aggressive'' or how aggressiveness
would be determined. One commenter stated that it was not clear who
would be responsible for determining whether an equine is aggressive.
Two commenters expressed concern that an equine may not be aggressive
during observation prior to transport but may become aggressive during
transport. One commenter suggested that we require segregation of any
equine ``that has been observed to display aggressiveness toward other
horses,'' to give the shipper some direction and protection if an
equine that did not show aggressive behavior becomes aggressive when
transport begins.
The statute directs the Secretary to review, among other things,
the segregation of stallions from other equines and such other issues
as the Secretary considers appropriate. The main purpose for separating
stallions (uncastrated male equines that are 1 year of age or older) is
that stallions are known to be aggressive animals that are easily
provoked into attacking other equines. In line with protecting equines
from aggressive behavior by stallions, we believe that any aggressive
equine should be separated from the other equines as set forth in
Sec. 88.3(a)(2). In fact, one of the USDA-commissioned studies observed
that the segregation of stallions did not solve the entire aggression
problem. The study determined that aggressive geldings and mares had to
be separated in the same manner as stallions.
The use of ``aggressive'' in the regulations is in accordance with
the definition of the term ``aggressive'' found in various
dictionaries. If an equine attacks another equine for no apparent
reason or kicks or bites another equine without provocation, for
example, we believe that equine should be considered aggressive. The
educational program we are developing will provide guidance concerning
aggressive equines. However, USDA representatives will be aware that
some equines that have not exhibited aggressive behavior on previous
occasions may do so under certain conditions, and they will take into
consideration that the owner/shipper may not have had prior knowledge
of the equines' aggressive tendencies.
Some commenters stated that mares with foals should be segregated
from other equines during transport. We believe that mares with foals
may be transported safely with other equines if the owner/shipper takes
proper precautions and, therefore, we will not require the segregation
of mares with foal. The educational program that we are developing will
show owners, shippers, and other stakeholders in the equine
slaughtering industry appropriate loading procedures and placement of
equines in the conveyance.
Several commenters stated that equines with shoes on their hind
feet should be segregated.
As stated previously, these regulations are performance-based
standards. We believe that shoed equines may be transported safely with
other equines if the owner/shipper takes proper precautions and,
therefore, we will not require the segregation of shoed equines.
However, the owner/shipper must ensure that equines are not injured
during transport. Any injuries that an equine incurs during transport
may result in the owner/shipper being found in violation of the
regulations and subject to civil penalties as provided in Sec. 88.6.
Floor Space
Proposed Sec. 88.4(a)(4)(i) stated that equines on the conveyance
must be loaded so that each equine has enough floor space to ensure
that no equine is crowded in a way likely to cause injury or
discomfort.
Several commenters stated that this requirement is vague and that
specifications for floor space should be included in the regulations.
One commenter stated that the number of equines carried should be equal
to the length of the compartment in feet divided by 4. One commenter
suggested a standard of 1.75m\2\/equine or approximately 18 square feet
per equine. Some commenters provided further suggestions based on
transit time, and/or the number, ages, and size of the equines. One
commenter stated that a numerical density specification should be
provided and should be based on scientific studies and practical
experience. One commenter stated that we should determine an average
numerical figure that is safe and acceptable for each vehicle type
based on research and require each vehicle to have a permanent tag
affixed that specifies the range or the number of equines/ponies that
are acceptable to be transported in the vehicle at one time. One
commenter stated that we should determine the appropriate density of
equines for each vehicle-type, based on studies conducted by Texas A&M
and Colorado State University. Several commenters stated that horse
industry standard for trailers is 8 to 15 horses and not the 40 to 45
that would be permitted for slaughter transport. One commenter
suggested a system in which equines may be transported at higher
densities during shorter trips, but at lower densities for longer
trips. This commenter stated that his studies and experience indicate
that slaughter-type horses that are transported for 28 hours should be
transported at a much lower density than the industry average (13 to 14
square feet per horse).
We were directed by Congress to draft performance-based regulations
wherever possible. Owner/shippers will have to load equines in a manner
that will avoid injury to the equines. Overcrowding in a conveyance can
cause animals to bruise and sustain other injuries. This could result
in the owner/shipper being found in violation of the regulations and
being assessed a civil penalty. Owner/shippers also have some market-
based
[[Page 63601]]
incentive to prevent injury to equines during transport because bruised
carcasses command lower market values. Our educational program will
help owner/shippers comply with the performance-based standards. The
educational program will address many issues, including loading density
and floor space. The educational program will be directed towards
owners, shippers, and other stakeholders in the equine slaughtering
industry.
Observation of Equines During Transport
Proposed Sec. 88.4(b)(2) stated that, during transit to the
slaughtering facility, the shipper must observe the equines as
frequently as circumstances allow, but not less than once every 6
hours, to check the physical condition of the equines and ensure that
the regulations are being followed. Proposed Sec. 88.4(b)(2) also
stated that veterinary assistance must be provided as soon as possible
for any equines in obvious physical distress.
Many commenters stated that observation of the equines every 6
hours is insufficient. Some of these commenters provided observation
ranges of every 2, 3, and 4 hours. One commenter stated that equines
should be observed the first hour and every 6 hours after. One
commenter stated that equines should be observed each time the
conveyance stops for a break or refueling, but not less than once every
6 hours, and that the equines must be allowed to rest for no less than
30 minutes while the vehicle remains stopped. One commenter stated that
the phrase ``not less than once every 6 hours'' is misleading and that
we should replace it with the phrase ``at least once every 6 hours.''
We believe that the requirement conveys the meaning that the
equines are to be observed once every 6 hours or more often. We
provided a maximum time of every 6 hours because we believe that this
is the maximum amount of time that equines should go without
observation to ensure that none have fallen or have become otherwise
physically distressed en route. However, Sec. 88.4(b)(2) requires
shippers or owners to observe the equines as frequently as
circumstances allow during transport, which would include during breaks
from driving and refueling.
One commenter stated that we should clarify whether adequate
observation includes stopping the truck and climbing on the trailer in
any weather and lighting conditions to examine the equines.
Observation of the equines by the owner/shipper means that the
owner/shipper must stop the conveyance and observe each equine at least
once every 6 hours. The owner/shipper has the responsibility of
locating an area where observation of the equines can be performed
safely and completely.
One commenter stated that Sec. 88.4(b)(2) should require veterinary
assistance as soon as ``reasonably'' possible.
We believe that Sec. 88.4(b)(2), as worded, conveys an appropriate
sense of urgency and does not require an owner/shipper to do anything
unreasonable. Veterinary assistance must be provided as soon as
possible to ensure the safe and humane transport of equines in the
conveyance. Also, in this final rule, Sec. 88.4(b)(2) requires owner/
shippers to obtain the services of an equine veterinarian for
veterinary assistance. We believe that an equine veterinarian will be
better equipped than most other veterinarians to handle equines. The
educational program we are developing in conjunction with this
regulation will provide participants with a list of equine
veterinarians within the United States and their telephone numbers.
One commenter stated that the regulations should specify how
equines that die in transit should be handled.
Our regulations are intended to ensure that equines transported to
slaughtering facilities are fit to travel and, therefore, not likely to
die in transit. However, in this final rule, Sec. 88.4(b)(2) states
that if an equine dies in transit, the driver of the conveyance must
contact the nearest APHIS office as soon as possible and allow an APHIS
veterinarian to examine the equine, and, if an APHIS veterinarian is
not available, the owner/shipper must contact an equine veterinarian.
Offloading of Equines After 28 Hours
Proposed Sec. 88.4(b)(3) stated that during transit to the
slaughtering facility, the shipper must offload from the conveyance any
equine that has been on the conveyance for 28 consecutive hours and
provide the equine appropriate food, potable water, and the opportunity
to rest for at least 6 consecutive hours. In addition, proposed
Sec. 88.4(b)(3) stated that, if such offloading is required en route to
the slaughtering facility, the shipper must prepare another owner-
shipper certificate and record the date, time, and location where the
offloading occurred. Both owner-shipper certificates would then need to
accompany the equine to the slaughtering facility. In this final rule,
the requirement for completing a new certificate if equines are
unloaded is at Sec. 88.4(a)(4).
Many commenters opposed allowing 28 hours without water, and many
opposed allowing the transport of horses for 28 hours without food,
water, or rest. Most of these commenters stated that equines must be
provided water, food, and/or rest, and unloaded at times ranging from
every 4 to 24 hours or reasonable intervals, and some added that the
time for water, food, and rest should be whether the vehicle is in
transit or stationary. Many commenters stated that equines should not
be without water, and some added food, for time periods ranging 3 to 12
hours, and some added that water could be provided during the
observation period. Several commenters stated that studies have shown
that equines suffer serious and traumatic health problems from travel
for periods under 28 hours, and several commenters referenced 24 hours.
One commenter stated that the amount of time that equines are deprived
of water, food, and rest should be reviewed by a qualified veterinarian
to establish that fewer hours should be specified. Several commenters
stated that the standard of 28 hours was determined primarily using
young, healthy horses, and that equines going to slaughter are not
young or healthy. Several commenters stated that the USDA-commissioned
studies did not take into account such variables as the age and
condition of the equines, the density of equines on the truck, and
temperature or other conditions. Some commenters, apparently thinking
the 6-hour period of food, water, and rest prior to loading could occur
at any time prior to loading, expressed concern that equines could be
without water for more than 28 hours if transport took 28 hours.
Several commenters stated that we should recommend a rest period of 8
hours that is not included in the transit length.
In accordance with Sec. 88.4(a)(1), an owner/shipper must provide
equines appropriate food, potable water, and an opportunity to rest for
a period of not less than 6 consecutive hours immediately prior to the
equines being loaded on the conveyance. Therefore, 28 hours would be
the longest an equine could go without being offered food and water
during transport to a slaughtering facility in the United States.
We based the requirements in Sec. 88.4(b)(3) on the conclusions of
the USDA-commissioned research, which was performed by veterinarians.
In addition, various times that horses could be without water were
reviewed by a panel of qualified veterinarians who established that the
research was valid. At least half of the USDA-commissioned research
involved
[[Page 63602]]
slaughter horses for comparison. In fact, one of the studies involved
306 horses that ranged from 1 to 30 years of age, and 33 percent of the
horses were 16 years of age or older.
Further, some of the research simulated transport to slaughter
under varying situations. For instance, straight-deck trucks were
divided into compartments with four levels of density, and the equines
were transported during the hottest part of the day during the summer.
The research also showed that frequent loading and unloading caused
more distress to equines than allowing the equines to remain on the
conveyance.
One commenter stated that the USDA-commissioned research performed
in 1998 by Drs. Carolyn Stull, Ted Friend, and Temple Grandin was
developed to deny that water, food, and rest are basic needs. Several
commenters stated that the research was biased and flawed and that some
of the researchers contradicted their findings in previously published
studies and findings. One commenter cited a study by Dr. Stull that
recommended water every 6 to 8 hours, if possible. Many commenters
stated that the USDA-commissioned study performed by Dr. Stull
concluded that trips longer than 27 hours showed effects in equines
that were considered to be reliable stress indices and that injuries
increased with travel times over 27 hours. These commenters added that
Dr. Stull performed a study that concluded that transportation in hot,
humid conditions should attempt to minimize thermal stress by
frequently offering (every 4 to 6 hours) water to horses and limiting
the duration of the trip. These commenters and several others stated
that Dr. Friend performed a study that concluded that tame horses in
good condition could be transported for up to 24 hours before
dehydration and fatigue became severe; however, they stated that the
study was terminated after 24 hours because 3 of the 30 horses were
deemed unable to continue and concluded that if horses must be
transported more than 24 hours, the truck must be equipped with a
watering device. One commenter stated that the study performed by Dr.
Stull was biased because she used horses in the study that were
identified by cooperating brokers and transport drivers who had an
interest in the outcome of the study. Another commenter also stated
that people associated with the auction facility and slaughtering
facility used for Dr. Grandin's study were made aware of the study
ahead of time.
We commissioned the performance of research to identify appropriate
timeframes in which food, water, and rest should be provided to ensure
that the last trip for equines being transported to slaughter was a
tolerable one. The research was performed to address the transport of
equines to slaughtering facilities. Our results were based on the most
recent research, which may have shown different results than previous
research by the same researchers. We based the requirements for food,
water, and rest on the conclusions of the research. The study performed
by Dr. Stull that was cited by the commenters regarding the
transportation of equines in hot and humid conditions was performed to
determine the optimal conditions for the transport of performance
horses.
It is true that Dr. Stull's USDA-commissioned research study
concluded that trips longer than 27 hours could cause distress to
equines; however, as stated in the proposal, we believe that 28 hours
will allow for realistic travel times from most points of the United
States to equine slaughtering facilities without the equines undergoing
serious physiological distress. In most cases, we believe equines will
be transported from the point of loading to the slaughtering facility
within 24 hours.
It is true that the equines used in Dr. Stull's study were
identified by cooperating brokers and transport drivers. Dr. Stull's
study required a large number of equines that were destined for
transport to slaughtering facilities. We believe that the
identification of equines by brokers and drivers did not have a
significant impact on the results of the study.
The nature of the research performed by Dr. Grandin required her to
have access to the equines for examination. The premises were
privately-owned and, as a consequence, there had to be a certain level
of cooperation with the owners or management of the premises. However,
we do not believe that the level of cooperation affected the results of
the study.
Several commenters suggested that providing water to equines en
route, via an onboard watering system, might be preferable to unloading
equines after 28 hours because unloading and loading equines from a
conveyance causes stress. One commenter suggested that loading equines
at a reduced density and watering enroute should be an alternative to
unloading. One commenter stated that each conveyance should contain at
least 10 gallons of water for every 20 equines for emergencies, in
addition to the equine's regular water supply.
We believe that unloading after 28 hours to provided food, water,
and rest is appropriate based on the findings of the USDA-commissioned
research.
Several commenters stated that APHIS is not following the findings
of the USDA-commissioned research because APHIS indicated that equines
do not experience serious physiological distress for 30 hours without
water if they have had access to water during the 6-hour period prior
to deprivation.
It is true that we stated in the proposed rule that the USDA-
commissioned studies showed that equines that had access to water in
the 6-hour period before deprivation occurred did not experience
serious physiological distress for up to 30 hours without further
access to water. However, we believe that a 28-hour maximum allowable
timeframe for deprivation of food, water, and rest during transport to
slaughter will allow for realistic travel times from most points of the
United States to the equine slaughtering facilities and ensure that the
equines will not undergo serious physiological distress.
One commenter stated that adequate water, ventilation, and feed
must be provided because equines are often sold by the pound, and loss
of weight during transport reduces revenue for the seller.
In accordance with Sec. 88.4(b)(3), the owner/shipper must offload
from the conveyance any equine that has been on the conveyance for 28
consecutive hours and provide the equine appropriate food, potable
water, and the opportunity to rest for at least 6 consecutive hours.
However, the owner/shipper may provide appropriate food, potable water,
and rest to equines at any point during transit that it is safe to do
so.
One commenter stated that we should recommend the offloading of
equines every 10 hours when drivers are required to stop and rest
because drivers are not allowed to drive for 28 hours straight. One
commenter stated that equines should be provided water, food, and rest
at each rest stop.
It is not clear whether the commenter was referring to each rest
area long the interstate or each time the driver stops for a rest. In
some areas, rest stops can be with 30 to 60 minutes of each other,
which could be an unnecessary burden on the owner/shipper. Further, we
do not believe that it is necessary to require the owner/shipper to
provide the equines with food, potable water, and rest at every rest
stop for the driver. Drivers must stop periodically for personal and
safety reasons. The timing of these stops has nothing to do with the
well-being of the equines.
[[Page 63603]]
One commenter stated that equines should be offloaded at weigh and
check stations when crossing a State or Federal boundary so that the
equines can be inspected for injuries because visibility is better
compared to observing the equines while they are in the conveyance.
Offloading equines at weigh and check stations could be a safety
hazard for the equines due to the presence of other commercial vehicles
that are not involved with the transport of equines. In addition, weigh
and check stations would have to be equipped with facilities that could
provide food, water, and containment of equines.
One commenter stated that the regulations are not clear whether the
28-hour rule includes the amount of time an APHIS official may spend
examining the equines. One commenter stated that Sec. 88.4(b)(3) should
exempt time required for inspection by USDA, State or Federal law
enforcement officials, or any other delay in the direct transport of
the equines due to governmental or law enforcement interference with
movement of the conveyance.
Section 88.4, paragraph (b)(3), requires any equine that has been
on a conveyance for 28 consecutive hours to be offloaded and provided
appropriate food, potable water, and the opportunity to rest for at
least 6 consecutive hours. We do not believe that amending
Sec. 88.4(b)(3) to address delays due to law enforcement officials is
appropriate. Equines that have been on a conveyance for 28 hours need
to be offloaded and provided food, rest, and, most importantly, potable
water, regardless of the reason that they were on the conveyance for 28
hours.
Handling of Equines
Proposed Sec. 88.4(c) required the handling of all equines in
commercial transportation to a slaughtering facility to be done as
expeditiously and carefully as possible in a manner that does not cause
unnecessary discomfort, stress, physical harm, or trauma. Proposed
Sec. 88.4(c) also prohibited use of electric prods on equines in
commercial transportation to a slaughtering facility for any purpose,
including loading or offloading on the conveyance, except when human
safety is threatened.
Many commenters stated that any use of electric prods should be
banned or prohibited, and some of these commenters stated that other
equipment is readily available if human safety is threatened. One
commenter stated that we should provide clarification as to who
determines when human safety is threatened. One commenter stated that
use of an electric prod can elicit unpredictable movement in horses.
One commenter stated that the loading of equines should be monitored to
ensure that prods are not used.
One of the purposes of the regulations is to ensure that equines
are transported without unnecessary discomfort, stress, physical harm,
or trauma. Therefore, the regulations prohibit the use of electric
prods, except in cases when human safety is threatened. We limited the
use of electric prods to situations in which human safety is threatened
to decrease the potential that prods could be used in abusive
situations. We agree that there may be other equipment that can be
used; however, they may not elicit a response quickly enough in a life
or death situation. The owner/shipper is the entity who must make the
determination of whether human safety is threatened. A USDA
representative cannot be present in all areas that equines may be
loaded for transport to slaughtering facilities; however, if an owner/
shipper uses an electric prod when human safety is not threatened and
evidence of that abuse is found, that person may be found in violation
of the regulations.
Many commenters stated that metal pipes and sharp or pointed
objects capable of piercing the skin should be banned. Many commenters
stated that no implement, device, contrivance, mechanism, apparatus,
appliance, contraption, instrument, tool, or utensil should be allowed
to be used, including for the control or restraint of the equines, that
was not expressly and specifically designed for use on equines and
generally recognized as such. In addition, several commenters stated
that only restraints considered humane should be used. Two commenters
stated that, in addition to electric prods, whips or any other object
that could cause injury or pain should be prohibited except when human
safety is directly threatened by an equine.
We cannot provide a list of all implements that have been or could
be used on equines because of the number of possibilities; however, the
use of any implement that does not provide equines with the care
described in Sec. 88.4(c) should not be used and could be a violation
of the regulations.
Examination of Equines at Any Point
Proposed Sec. 88.4(d) stated that at any point during the
commercial transportation of equines to a slaughtering facility, a USDA
representative may examine the equines, inspect the conveyance, or
review the owner-shipper certificates required by Sec. 88.4(a)(3).
Several commenters stated that Sec. 88.4(d) should state ``must''
rather than ``may.''
We use ``may'' in Sec. 88.4(d) because a USDA representative may
not be able to examine all equines, inspect all conveyances, or review
all of the owner-shipper certificates. However, USDA representatives
are authorized by Sec. 88.4(d) to inspect the equines and conveyances
as the need arises, and USDA representatives will collect all of the
owner-shipper certificates at slaughtering facilities.
One commenter stated that Sec. 88.4(d) should require a USDA
representative, his or her designee, a weigh station or agricultural
check point employee, or other law enforcement personnel to enforce the
requirements of the regulations during transit as well as upon arrival
at the slaughter facility. One commenter stated that we should clarify
whether law enforcement officials can perform duties such as inspect
vehicles, conduct investigations, examine the animals and seize and
impound the animals, if necessary. Some commenters stated that there
should be a provision that allows law enforcement officials, State or
Federal employees, or inspectors to ensure an owner or shipper's
compliance with the regulations.
In a State that has its own regulations regarding the transport of
equines to slaughter, that State's police or law enforcement personnel
can enforce the State's regulations. The statute does not provide for
Federal enforcement actions by State and local law enforcement
personnel in State and local courts.
One commenter stated that equines should be shipped directly and
expeditiously from the point of loading to the slaughtering facility
without stopping between the points for USDA representatives to conduct
examinations, which the commenter stated could be potentially harmful
and cause stress to the animals. This commenter stated that the manner
at which the equines arrive at the slaughtering facility should be
sufficient.
We believe that we need to be able to check conveyances, equines,
and paperwork if we have any concerns that equines may be being
transported in violation of the regulations. Every transport will not
be subject to such an examination; however, if an examination has to be
conducted, the USDA representative will consider the welfare of the
equines in the conveyance and will not take more time than necessary to
perform his or her duties.
[[Page 63604]]
Direction to the Owner/Shipper To Take Action
Proposed Sec. 88.4(e) stated that, at any time during the
commercial transportation of equines to a slaughtering facility, a USDA
representative may direct the shipper to take appropriate actions to
alleviate the suffering of any equine. Proposed Sec. 88.4(e) also
stated that, if deemed necessary by the USDA representative, such
actions could include securing the services of a veterinary
professional to treat an equine, including performing euthanasia if
necessary.
Several commenters stated that Sec. 88.4(e) should state that a
USDA representative ``must,'' ``shall,'' or ``should'' direct the
shipper to take appropriate actions, and that such actions ``must''
include securing the services of a veterinary professional.
We use ``may'' in Sec. 88.4(e) because this provision authorizes a
USDA representative to direct the owner/shipper to take appropriate
actions to alleviate the suffering of any equine based on the
representative's assessment of the equine's condition. ``Must'' would
imply that such direction will be necessary in all cases. Similarly, we
say that such action ``could'' include securing the services of a
veterinary professional because those services will not always be
necessary.
One commenter stated that Sec. 88.4(e) should state that the
services of a veterinary professional will be secured if ``reasonably''
available.
We believe that if a USDA representative directs the owner/shipper,
as provided in Sec. 88.4(e), to secure the services of a veterinary
professional to treat an equine, the veterinary professional should be
secured as soon as possible.
One commenter stated that Sec. 88.4(e) should refer to a USDA
representative ``or his or her designee.'' In addition, this commenter
stated that the veterinary professional should be an equine veterinary
professional.
We do not believe that Sec. 88.4(e) needs to indicate ``his or her
designee'' because we define USDA representative as any USDA employee
authorized by the Deputy Administrator, Veterinary Services, APHIS, to
enforce the regulations. However, we agree with the commenter that
Sec. 88.4(e) should specify that the veterinary professional must be an
equine veterinarian. We have amended Sec. 88.4(e) to require the
veterinary professional to be an equine veterinarian.
Retention of the Owner-Shipper Certificate for 1 Year
Proposed Sec. 88.4(f) stated that the individual or other entity
who signs the owner-shipper certificate must maintain a copy of the
owner-shipper certificate for 1 year following the date of signature.
Several commenters stated that the owner or shipper should retain a
copy of the owner-shipper certificate for a minimum of 2 years, and
some of these commenters stated that we should retain a copy so that
information is readily accessible to those who are attempting to trace
lost or stolen equines. One commenter stated that there should be
provisions for law enforcement and State agencies to have access to the
owner-shipper certificates for identifying and locating stolen or
missing horses.
We believe that requiring a 1-year retention of the owner-shipper
certificates is adequate. If someone is attempting to trace a lost or
stolen equine, the investigation will more than likely take place
within a few months of the disappearance of the equine. However, to
improve the capability of tracing lost or stolen equines, APHIS plans
to develop a database of the information provided on the owner-shipper
certificates. If necessary, information from the database could be
supplied to law enforcement or State agencies, when requested.
Section 88.5 Requirements at a Slaughtering Facility
Access to Food and Water After Unloading
Proposed Sec. 88.5(a)(1) stated that, upon arrival at a
slaughtering facility, the shipper must ensure that each equine has
access to appropriate food and potable water after being offloaded.
Two commenters stated that the shipper should not be responsible
for providing food and water to equines at the slaughtering facility.
Both commenters stated that the slaughtering facility should be the
responsible party. One of these commenters stated that the shipper
would not know the conditions at destination and, in most cases, would
not be the owner of the equines.
We believe that the requirement in Sec. 88.5(a)(1) will ensure that
the owner/shipper notifies the proper officials of his or her arrival
at the slaughtering facility, and that the equines are offloaded into
an area where the slaughtering facility can provide food and potable
water.
One commenter stated that Sec. 88.5(a)(1) should state that the
management of the slaughtering facility must provide consent to the
shipper to provide each equine access to appropriate potable water
after being offloaded, but not food.
We believe that equines should be allowed access to both food and
potable water to maintain their well-being after being transported
without access to food and water, sometimes over great distances. The
requirement in Sec. 88.5(a)(1) is to ensure that the owner/shipper
notifies the proper officials of his or her arrival at the slaughtering
facility. We believe that most shippers and owners will appropriately
communicate with the proper personnel at the slaughtering facility
without the inclusion of the word ``consent'' in the regulation.
One commenter stated that equines should be provided water every 4-
6 hours where they are housed before slaughter.
The statute only allows us to regulate the transport of equines to
a slaughtering facility. Once the equines arrive at the slaughtering
facility and are provided food, potable water after being offloaded in
accordance with Sec. 88.5(a)(1), the equines are subject to the
facility's feed and water schedule.
One commenter stated that Sec. 88.5(a) should require the arrival
of a conveyance during regular business hours of the slaughtering
facility and to require the shipper to ``immediately'' abide by the
requirements set forth in Sec. 88.5(a).
We do not believe that requiring shipments of equines to arrive at
slaughtering facilities during normal business hours would always be in
the best interests of the equines. It could, for instance, result in
the equines being kept on the conveyance for a longer time than might
otherwise be necessary.
We do not believe that adding ``immediately'' is necessary because,
in most cases, the owner/shipper will offload the equines and discharge
his or her responsibilities as soon as possible after arrival.
Access to the Equines
Proposed Sec. 88.5(a)(3) stated that, upon arrival at a
slaughtering facility, the shipper must allow a USDA representative
access to the equines for the purpose of examination.
Several commenters pointed out that USDA representatives are not
available at slaughtering facilities on all days of the week or at all
hours. One commenter stated that Sec. 88.5(a)(3) should state that
management of the slaughtering facility must provide consent to a USDA
representative to have access to the equines for the purpose of
examination. The commenter also stated that
[[Page 63605]]
Sec. 88.5(a)(3) should state that the absence or delay in arrival of
the USDA representative will not prohibit the slaughtering facility
from proceeding with the slaughter of the equines during its normal
course of business. One commenter stated that if a USDA representative
is not available prior to slaughter, an examination of carcasses for
bruising or abrasions during inspection could be used to assess
injuries incurred during transport to the slaughtering facility. One
commenter asked who a USDA representative is. One commenter asked if
full-time veterinarians would be assigned to the slaughtering
facilities to enforce the regulations.
A USDA representative will be available during normal business
hours of the slaughtering facility to examine the equines. This
requirement, therefore, should not cause any significant delays in
slaughter operations. Also, most equines are delivered during the hours
of operation of the slaughtering facility. Regardless of when the
equines arrive, we believe a USDA representative must be given access
to the equines prior to slaughter for the purpose of examination.
A USDA representative may be any employee of the USDA who is
authorized by the Deputy Administrator, Veterinary Services, APHIS, to
enforce the regulations. The employee could be an APHIS veterinarian, a
Food Safety and Inspection Service (FSIS) employee, or any other USDA
employee so authorized.
One commenter stated that Sec. 88.5(a)(3) should require equines to
be inspected when they reach their destination.
In accordance with Sec. 88.5(a)(3), a USDA representative must be
given access to the equines for the purpose of examination; however,
the USDA representative will use his or her discretion in determining
which equines to inspect and the extent of any examination.
Access to the Animal Cargo Area
Proposed Sec. 88.5(a)(4) stated that, upon arrival at a
slaughtering facility, the shipper must allow a USDA representative
access to the animal cargo area of the conveyance for the purpose of
inspection.
One commenter stated that Sec. 88.5(a)(4) should require inspection
of the animal cargo area.
Inspection of the animal cargo area may not be necessary in all
cases. This requirement in Sec. 88.5(a)(4) alerts owner/shippers that
the animal cargo area of their conveyances may be inspected by a USDA
representative.
Owner/Shipper Remaining on Premises
Proposed Sec. 88.5(b) stated that the shipper must not leave the
premises of a slaughtering facility until the equines have been
examined by a USDA representative.
One commenter stated that equine slaughtering facilities should not
have their slaughter schedules dictated by APHIS. This commenter stated
that Sec. 88.5(b) should allow the shipper to leave the premises of the
slaughtering facility if a USDA representative does not appear to
examine the equines within 3 hours after they are offloaded from the
conveyance. One commenter stated that drivers should not have to wait
for the USDA representative and should be allowed to leave the premises
if an employee of the slaughtering facility is there to allow the USDA
representative access to the equines.
A USDA representative will be available for the examination of the
equines and conveyances during normal business hours, and we believe it
is important for the owner/shipper to be present during these
activities. However, we agree that a driver who arrives at a
slaughtering facility outside of normal business hours should be able
to leave the premises to eat or rest. Therefore, Sec. 88.5(b) of this
final rule states that the owner/shipper must not leave the premises of
a slaughtering facility until the equines have been examined by a USDA
representative if the owner/shipper arrives during normal business
hours; however, if the owner/shipper arrives outside of normal business
hours, the owner/shipper may leave the premises but must return to the
premises of the slaughtering facility to meet the USDA representative
upon his or her arrival.
One commenter stated that Sec. 88.5(a) should provide that all
equines that are nonambulatory upon arrival should be euthanized on the
vehicle after all other equines have been unloaded and that euthanasia
should be performed by a licensed and accredited veterinarian in an
approved manner. The commenter stated further that if arrival of a
veterinarian would cause time delays and suffering to the equine, the
regulations should provide that euthanasia could be performed by a
trained individual using approved methods. In addition, the commenter
maintained that the regulations should provide that seriously injured
or downed animals may not be dragged, hoisted, thrown, or left alone
without medical intervention.
Any equine that is seriously injured or nonambulatory upon arrival
must be provided veterinary assistance and may not be mistreated or
left unattended. A USDA representative will be available to examine the
equines upon their arrival at the slaughtering facility during normal
business hours. In most cases, the USDA representative will be a
veterinarian; therefore, the USDA representative will be able to
perform euthanasia, if necessary. If an equine is nonambulatory, is
seriously injured, or is otherwise in obvious physical distress upon
arrival and a USDA representative is not available (i.e., because of
arrival of the equines at the slaughtering facility outside of normal
business hours), Sec. 88.4(b)(2) requires the owner/shipper to obtain
veterinary assistance as soon as possible. We agree that equines that
become nonambulatory should be euthanized. In this final rule,
Sec. 88.4(b)(2) provides that equines that become nonambulatory en
route to a slaughtering facility must be euthanized by an equine
veterinarian. Since we are requiring that euthanasia be performed by an
equine veterinarian, we do not believe that it is necessary to add that
euthanasia be performed in an approved manner.
Transport of Equines Outside the United States
Proposed Sec. 88.5(c) stated that any shipper transporting equines
to slaughtering facilities outside the United States must present the
owner-shipper certificate to USDA representatives at the border.
One commenter stated that Sec. 88.5(c) does not state that a USDA
inspector will inspect the equines to determine whether they are fit to
travel or whether the description on the owner-shipper certificate
matches the equines in the conveyance.
A USDA representative at the border will inspect conveyances
carrying equines destined for slaughter outside the United States when
he or she deems it necessary.
Section 88.6 Violations and Penalties
Proposed Sec. 88.6(a) stated that the Secretary is authorized to
assess civil penalties of up to $5,000 per violation of any of the
regulations in part 88, and proposed Sec. 88.6(b) stated that each
equine transported in violation of the regulations would be considered
a separate violation.
Many commenters stated that penalties for violation of the
regulations should be criminal instead of civil; otherwise, law
enforcement personnel will not be able to enforce them. Some commenters
stated that laws must be
[[Page 63606]]
enforced at auctions and feedlots, prior to loading. One commenter
stated that Sec. 88.6 should provide that a person who knowingly
violates the regulations shall, upon conviction, be subject to
imprisonment for not more than 1 year or a fine of $5,000, or both, and
on conviction of a second or subsequent offense, the person shall be
subject to imprisonment for not more than 3 years or to a fine of
$8,000, or both.
The statute does not allow the Secretary to establish criminal
penalties for violations of the regulations. The statute allows the
Secretary to establish and enforce appropriate and effective civil
penalties only. As previously explained, the regulations pertain to
equines transported to slaughter from any point of loading, including
auctions/markets and feedlots.
One commenter stated that shippers should be subject to penalties
as prescribed by county, State, or Federal statutes or regulations.
The regulations do not prohibit counties or States from applying
penalties in accordance with their regulations if an owner/shipper
violates their regulations even if the amount of the penalty is more
than that provided in Sec. 88.6(a).
One commenter stated that civil penalties of up to $10,000 rather
than $5,000 should be assessed. One commenter stated that if a
conveyance carrying a load of equines is found to have a sharp
protrusion, a fine of $5,000 per equine in the conveyance seems
excessive, especially if an equine that is being transported caused the
protrusion by kicking the walls of the conveyance. This commenter
stated that a sliding scale should be used that increases the amount of
the fine proportional to the seriousness of the violation. This
commenter further stated that a sliding scale would help the shipper
know exactly what is expected of him/her, ensure that USDA
representatives levy the same fines for the same offense, and provide
credibility to the USDA during any appeals process. One commenter
stated that Sec. 88.6 should provide that civil penalties will be
progressive, with the first offense receiving a written warning; the
second offense a fine up to $500 per violation; the third offense a
fine up to $2,500 per violation; and the fourth or subsequent offense a
fine up to the jurisdictional limit. One commenter suggested that we
provide for a minimum fine of $500. One commenter suggested that each
day a violation occurs should be considered a separate violation.
In Sec. 88.6(a), we state that the Secretary is authorized to
assess civil penalties of up to $5,000 per violation. We proposed
assessing civil penalties of up to $5,000 per violation based on the
legislative history of the statute and our experience as a Federal
regulatory agency. We believe that a civil penalty of up to $5,000 per
violation is appropriate and will be effective in deterring
noncompliance with the regulations. Among other things, this belief is
based on our experience in enforcing the Animal Welfare Act as amended
(7 U.S.C. 2131 et seq.) and the Horse Protection Act, as amended (15
U.S.C. 1821-1831), two other statutes whose purpose is ensuring the
humane treatment of animals. The statement concerning each equine
transported in violation of the regulations being a separate violation
also derives from the statute's legislative history and our experience
as a regulatory agency.
We do not believe that we need to include a sliding scale or a
minimum fine. The amount of the civil penalty will be determined based
on the severity of the violation and the history of the owner/shipper's
compliance with the regulations. Procedures will be in place to ensure
consistent application of civil penalties. We also do not believe that
we need to consider each day that a violation occurs as a separate
violation. We believe that considering each equine transported in
violation of the regulations as a separate violation is sufficient.
One commenter stated that Sec. 88.6 should provide that a person
who assaults, resists, opposes, impedes, intimidates, or interferes
with any USDA representative or his/her agent in performing an official
duty pursuant to the regulations should be assessed a fine of no less
than $1,000 and up to $5,000.
There is a statute that provides protection to all Federal
employees (18 U.S.C. 111). The statute prohibits the assault on any
Federal employee.
One commenter stated that APHIS should provide that, for any person
who fails to pay a civil penalty, the Secretary shall request the
Attorney General to institute a civil action in a district court of the
United States or other court of the United States for any district in
which the person is found, resides, or transacts business, to collect
the penalty, and to provide that the court shall have jurisdiction to
hear and decide the actions.
If an owner/shipper is unable to pay a civil penalty, we can pursue
payment through a payment plan or adjustment of the amount. However, if
the case is not settled, a formal complaint may be filed. If a
complaint is issued, the case may go to a hearing. If a hearing is
held, the matter will be heard and decided by an administrative law
judge.
One commenter stated that, to a certain extent, injuries during
transport are unavoidable and assessing civil penalties to commercial
transporters may not be appropriate. This commenter stated that civil
penalties should be designed to ensure compliance with the regulations
and not punish an industry for occurrences that are beyond its control.
We understand that some injuries may not be avoidable; however, the
purpose of the regulations is to ensure the humane transport of equines
to slaughtering facilities. If shippers and owners adhere to this rule,
we believe that many of the injuries that equines have suffered in the
past will be avoided.
One commenter stated that the regulations do not allow truck
drivers to provide grounds for their defense as to how the equines were
injured.
USDA will consider a trucker's explanation in determining whether a
violation has occurred. However, as stated in the proposal, if
adjudication is necessary, it will be conducted pursuant to the USDA's
``Uniform Rules of Practice Governing Formal Adjudicatory Proceedings
Instituted by the Secretary Under Various Statutes,'' found at 7 CFR
part 1, subpart H(7 CFR 1.130-1.151), and the Supplemental Rules of
Practice found at 9 CFR, part 70, subpart B (9 CFR 70.10). The Rules of
Practice establish, among other things, the procedures for filing a
complaint and a response, settling a case, and holding a hearing. Based
on this information, any one who is cited for violating the regulations
will be provided an opportunity to present his or her case.
Many commenters stated that enforcement of the regulations may be
difficult because we use performance-based standards rather than
engineering-based standards. Some of these commenters stated that
Congress directed the Secretary of Agriculture to employ ``to the
extent possible'' performance-based standards. One of these commenters
stated that USDA tried performance-based standards with Sec. 3.81 of
the Animal Welfare regulations regarding primate psychological well-
being, which led to confusion among entities that were affected by the
regulations.
The conference report states that, to the extent possible, the
Secretary is to employ performance-based standards rather than
engineering-based standards when establishing regulations to carry out
the intent of the statute and that the Secretary is not to inhibit the
commercially viable transport of equines to slaughtering facilities. We
used performance-based standards
[[Page 63607]]
rather than engineering-based standard because they are the least
intrusive method of regulating entities and are potentially less
burdensome on regulated entities. We will review and evaluate these
standards once they are in place. If we determine that changes are
necessary, we will publish another document in the Federal Register for
public comment.
One commenter stated that we will not be able to adequately enforce
the regulations because we do not require persons transporting equines
to slaughter to register with or apply for a USDA license. This
commenter stated that individuals who are not in compliance could be
threatened with suspension of their licenses rather than assessment of
fines, which could be viewed as the cost of doing business.
We do not believe that registration with or a license issued by
APHIS is necessary. We believe that the civil penalties set forth in
Sec. 88.6 are sufficient to ensure compliance with the regulations.
One commenter stated that the regulations should provide for
suspension of a hauler's carrier certificate, the operator's commercial
driver's license (CDL), and the registration of the vehicle involved
for not less than 90 calendar days from the date of adjudication upon
violations of the regulations. This commenter further stated that the
hauler and consignor should be jointly responsible for the maintenance
of the animals that were in the vehicle at the time of the seizure at
the seizing authority's choice until a proper vehicle is provided for
their continued shipment. The commenter also maintained that failure to
post a satisfactory bond or to pay the costs involved should result in
forfeiture of the vehicle and load to the seizing authority as partial
payment for costs incurred by the seizing authority, which should
retain all other remedies including civil suits and criminal
prosecutions. The commenter also stated that a second violation of the
regulations or violation of any other jurisdiction's animal
transportation regulations should result in penalties applied per
animal in the vehicle, without limit, and that a third violation should
result in a minimum 1-year suspension of certificates and CDL per
animal in the vehicle.
The statute does not provide the Secretary with the authority to
suspend a hauler's carrier certificate, the operator's commercial
driver's license, or registration of the vehicle if the operator
violates these regulations. In addition, the statute does not give the
Secretary authority to seize vehicles. The statute provides the
Secretary with the authority to assess only civil penalties for
violation of the regulations.
One commenter stated that the regulations do not address how we
will determine, other than by checking for a signed, properly timed and
dated owner-shipper certificate, that the intentions of the regulations
are being met and a violation of the regulations has not occurred. One
commenter stated that the proposed regulations were unclear as to what
APHIS would do when an owner-shipper certificate appears to be in order
but the equines arrive in poor condition or with injuries. Several
commenters stated that the regulations should state that any equine
arriving in a condition that is noncompliant with the regulations will
be considered a violation, regardless of the information on the owner-
shipper certificate.
The USDA representative at the slaughtering facility will have
access to both the equines and the paperwork accompanying them. If an
equine arrives at a slaughtering facility with an injury that was not
recorded on the owner-shipper certificate or in a condition that is
evidence that the equine was not fit to travel, the owner/shipper may
be found in violation of the regulations and may be assessed civil
penalties as set forth in Sec. 88.6.
Paperwork Burden
One commenter stated that electronic transmission of the owner-
shipper certificate may not decrease the burden because the format must
be standardized, and a ``hard-copy'' must be made to accompany each
equine. The commenter stated that the owner-shipper certificate could
be in book form that is bound and supplied with a duplicate-style copy
so the owner/shipper would have a copy of the certificate that was
given to APHIS.
The owner-shipper certificate will consist of a multipart set that
will eliminate the need for the owner/shipper to make copies of the
form.
One commenter stated that completion of the owner-shipper
certificate would take 2 to 3 minutes. Several commenters stated that
completion of the owner-shipper certificate will take more than 5
minutes per equine. One of these commenters stated that each equine
must be examined thoroughly, in addition to completing the certificate.
The estimated burden was based on discussions with owners and
shippers of slaughter horses and the owner/operators of slaughtering
facilities. The estimated burden of 5 minutes was only an estimate. We
are aware that some individuals may take a little less or a little more
time than others to inspect each equine and complete the owner-shipper
certificate.
Miscellaneous
One commenter stated that the proposal does not cover equines that
belong to slaughtering facilities and that are transferred from a
feeding facility owned by the facility to the plant grounds. This
commenter stated that the regulations are not clear as to whether
owner-shipper certificates are required to ship equines to a feedlot
when the equines will be eventually transported for slaughter, and they
are not clear as to whether a slaughtering facility has to complete
owner-shipper certificates for equines owned by the facility to
transport them from its own facilities or ranches to the slaughtering
facility.
The regulations pertain to any individual or other entity that fits
the definition of the term owner/shipper. Therefore, a slaughtering
facility would have to complete an owner-shipper certificate and
otherwise adhere to the regulations if it moves equines from its own
premises, such as a ranch or feedlot, to the slaughtering facility.
However, if equines arrive at a slaughtering facility (defined as a
commercial establishment that slaughters equines for any purpose) and
the facility moves all or some of the equines to its own feedlot or
other premises, the slaughtering facility will not have to complete an
owner-shipper certificate or otherwise comply with the regulations for
that movement. The slaughtering facility must, however, complete an
owner-shipper certificate and otherwise comply with the regulations
when it transports the equines back to the slaughtering facility.
One commenter stated that mileage calculations that we provided
under the ``Executive Order 12866 and Regulatory Flexibility Analysis''
section of the proposal were based on the assumption that shippers
deliver to the closest available plant, which is not always the case.
This commenter stated that shippers deliver to the plant where they
have their contract or to the plant that is paying the most money. This
commenter also stated that the proposal contended that shippers would
have to share driving responsibilities with another driver to meet the
requirements, but the regulations do not require it.
We believe that barring unusual circumstances, the overwhelming
majority of equines arrive at slaughtering facilities in 28 hours or
less. As to the use of two different drivers, we stated that drivers of
equines that originate at east or west coast
[[Page 63608]]
locations could reduce the time equines spent on conveyances
considerably by using two different drivers on long trips. However,
this scenario was only an example for those drivers who can share
driving responsibilities with another driver. If the driver of a
conveyance will require more than 28 hours to reach his or her
destination, whether alone or with a partner, he or she must abide by
Sec. 88.4(b)(3) and offload the equines from the conveyance to provide
them with appropriate food, potable water, and the opportunity to rest
for at least 6 consecutive hours before reloading them.
One commenter stated that we should require drivers to be certified
by APHIS as knowledgeable in equine handling and humane treatment.
We do not believe this is necessary. We believe that the
regulations will help ensure the humane movement of equines that are
transported to slaughtering facilities. If the equines are not handled
or transported as required by the regulations, or if the equines are
injured during transport, the owner/shipper may be found in violation
of the regulations and assessed a civil penalty. To assist drivers and
others in meeting the requirements of the regulations, we are preparing
an educational program.
One commenter stated that the regulations should extend to agents
of owners and shippers. This commenter suggested, ``The act, omission,
or failure of an individual acting for or employed by the owner or
shipper, within the scope of employment, shall be considered the act,
omission, or failure of the owner or shipper as well as that of the
individual.''
We do not believe that we need to address agents. We believe that
we have defined owner/shipper broadly enough to cover anyone
transporting equines to slaughtering facilities (except as specifically
exempted by the regulations).
One commenter stated that the regulations will result in increased
transit time and more frequent loading and unloading of equines, which
will increase the possibility of exacerbating existing injuries or
creating new ones.
We do not believe that the regulations will result in an increase
in transit time or loading and unloading in most cases. As stated in
the discussion under ``Executive Order 12866 and Regulatory Flexibility
Act,'' officials at two of the U.S. equine slaughtering facilities,
including the largest facility, indicated that, barring unusual
circumstances, the overwhelming majority of equines already arrive at
the slaughtering facilities in 28 hours or less. In cases where
transport would take more than 28 hours, we believe the benefits of
unloading the equines for rest, food, and water outweigh the
disadvantages of unloading and reloading. Also, owners or shippers
could locate, in advance, appropriate facilities close to their routes
for unloading the equines. In addition, the educational program that we
are developing will provide owners and shippers with information on the
proper methods for loading and unloading equines from a conveyance to
help ensure that injuries to equines do not occur.
One commenter stated that the regulations should apply as minimum
standards for all commercial haulers, regardless of the origin or
destination of the load. One commenter stated that the regulations seem
to state that if an equine is transported to a slaughtering facility,
the transportation is given protection by Federal regulations; however,
if the animal is transported to some other destination, the
transportation can be performed without protection of these
regulations.
We are unable to expand the scope of these regulations to include
the transportation of equines to any destination other than a
slaughtering facility. Congress authorized the Secretary to issue
guidelines for the regulation of the commercial transportation of
equines for slaughter by persons regularly engaged in that activity. In
addition, Congress clarified its intentions with regard to the statute
through a conference report. The conference report states, among other
things, that the Secretary has not been given the authority to regulate
the routine or regular transportation of equines to other than a
slaughtering facility.
One commenter stated that conveyances that enter the United States
from Canada are sealed by authorities in Canada, and that to meet the
requirement that equines must be fed, watered, and offloaded every 28
hours, the seals would have to be broken during transport in the United
States to comply with the regulations.
Few equines are transported from Canada into the United States for
slaughter purposes. However, if equines are transported from Canada
into the United States and must be offloaded in the United States to
meet the requirements of part 88, the seals may only be broken by a
USDA representative at an approved site for offloading the equines. The
owner/shipper must make arrangements with the APHIS office that is
nearest to the location where the equines must be offloaded. After the
equines have had the prescribed rest, food, and water, the truck will
be sealed by the USDA representative and allowed to resume transport to
the slaughtering facility.
One commenter stated that we should obtain written agreements from
Canada and Mexico to ensure compliance with the regulations for equines
moving into those countries for slaughter. One commenter stated that
the regulations would allow travel time of 28 hours within the United
States and additional travel time after entering Canada. This commenter
stated that the regulations should include travel time to the final
destination in Canada because the locations of plants in Canada are
established.
For equines transported by conveyance from a point inside the
United States to a slaughtering facility outside the United States, the
regulations end at the border, where the owner/shipper must present the
owner-shipper certificates. We do not have jurisdiction over movement
of equines outside the United States. Although, we currently do not
have an arrangement with Mexico, we have revised the owner-shipper
certificate to include a field for a stamp to be administered by
Canadian officials at slaughtering facilities in Canada. The stamp will
include the time and date of arrival and slaughtering facility. We can
use this information to verify the amount of time that equines have
been on a conveyance prior to leaving the United States.
One commenter stated that we must provide the public with the
findings from USDA-commissioned research so the public can offer
comment. Another commenter stated that she could not obtain copies of
the research.
Copies of the USDA-commissioned research were and are available
from the person listed under FOR FURTHER INFORMATION CONTACT.
One commenter stated that an equine first aid kit that includes,
among other things, fly spray, rubbing alcohol, and a hoof pick should
be on the conveyance. In addition, this commenter stated that at least
one fire extinguisher should be on the conveyance and that the driver's
ability to use the fire extinguisher should be established by an APHIS
inspector.
We do not believe that it is necessary to require an equine first
aid kit. If an equine is in physical distress, the owner/shipper is
required, in accordance with Sec. 88.4(b)(2), to have an equine
veterinarian provide veterinary assistance as soon as possible. Until
such assistance is available, the owner/shipper may be the only person
in a conveyance, and attempts by the owner/shipper to apply first aid,
without assistance, to an injured equine could be
[[Page 63609]]
dangerous for the person and the equine. As to a fire extinguisher, the
Federal Motor Carrier Safety Administration within the Department of
Transportation requires commercial motor vehicles used on a highway in
interstate commerce to be equipped with a fire extinguisher when, in
short, the gross vehicle has a weight rating or gross combination
weight rating, or gross vehicle weight, or gross combination weight, of
4,537 kg (10,001 lb) or more; whichever is greater. We believe that
most conveyances used for the commercial transportation of equines to
slaughtering facilities meet this weight threshold.
Several commenters stated that a $400 disposal fee should be levied
against an owner or shipper for every equine that arrives dead or in an
unusable condition to discourage owners from sending downed or dying
horses to slaughter. One of these commenters stated that the disposal
fee could be used to subsidize long distance shipments of equines that
are made at reduced loading density. Two commenters stated that the
regulations should establish a per equine fee of $5 to be levied upon
an owner who sells an equine to slaughter. One commenter stated that
the $5 per equine fee could be used to cover the costs of administering
and enforcing the regulations, and another commenter stated that the
fee could be used to provide rewards for information leading to
documentation of violations of the regulations.
We believe that the regulations will help ensure that equines that
are shipped to slaughtering facilities are fit to travel. However, we
do not have authority to assess a disposal fee and/or a $5 fee per
equine.
One commenter stated that we should not allow dogs to be used to
herd equines for breeding.
If someone wishes to use dogs to herd equines into a conveyance,
the equines must be handled in a manner that does not violate the
regulations, including those in Sec. 88.4(c). In Sec. 88.4, paragraph
(c) states that handling of all equines in commercial transportation to
a slaughtering facility shall be done in a manner that does not cause
unnecessary discomfort, stress, physical harm, or trauma.
One commenter stated that all conveyances that contain live animals
should be so labeled and that a toll-free USDA/APHIS telephone number
should be displayed for the public to call if a vehicle is operating in
an unsafe manner or a dangerous or inhumane treatment is witnessed.
We do not believe that we should require a conveyance to be labeled
as containing live equines or to display a toll free USDA/APHIS
telephone number. Many conveyances transport equines for purposes other
than to slaughtering facilities, and the Secretary has not been given
the authority to regulate the routine or regular transportation of
equines to other than a slaughtering facility. However, if someone
witnesses inhumane treatment, we encourage the person to contact the
nearest APHIS office or the proper local authorities. In addition, if a
vehicle is operating in an unsafe manner, especially if human safety is
threatened, the proper local law enforcement authorities should be
contacted.
One commenter stated that individuals who transport equines to
veterinary facilities for treatment should be exempt from the
regulations that pertain to the health of the equines that are hauled.
The regulations do not pertain to the transport of equines to
veterinary facilities, only to the transport of equines to slaughtering
facilities.
One commenter stated that USDA does not have a program to identify
stolen equines that arrive at slaughtering facilities.
APHIS will require an owner-shipper certificate for each equine
that is transported to a slaughtering facility. The USDA representative
at the slaughtering facility will collect the certificates. In
addition, the owner/shipper must maintain a copy of the certificate for
1 year. We will maintain information from the completed certificates in
a database that can help us trace lost or stolen equines.
One commenter stated that proficiency testing (written and skills)
for those engaged in the commercial transport of equines should be
required because it is impossible to determine whether the persons
targeted (e.g., drivers of the conveyances) are reading and
understanding the educational materials. One commenter stated that an
educational component should be included in the regulations to ensure
that all affected parties are informed of the new regulations. One
commenter stated that APHIS must put effort toward educating inspectors
at feedlots, assembly points, or stockyards because shippers and owners
already know how to properly transport equines.
We do not think that a proficiency test is necessary. We are
developing an educational program that will include a video, guidebook,
and workshops. The program will be directed towards owners, shippers,
and others in the equine slaughtering industry. We will also provide
opportunities for individuals who work at feedlots, assembly points,
and stockyards to participate in the educational program.
Several commenters expressed concern that burdensome regulations in
the United States may lead to an increase in the shipment of livestock
to countries where animal welfare is not a consideration. One of these
commenters and others stated that the regulations are not necessary and
that effective enforcement of existing laws is necessary. One of these
commenters stated that safeguards already exist for the humane
treatment of equines prior to slaughter. One commenter stated that
imposing additional humane shipping conditions on the industry will
decrease profits by increasing transportation costs.
Until this final rule becomes effective, no specific standards
exist that address the needs of equines transported to slaughtering
facilities. We believe that the regulations are the minimum standards
to ensure the humane movement of equines to slaughtering facilities via
commercial transportation. If equines are transported by conveyance
from a point inside the United States to a slaughtering facility
outside the United States, the owner/shipper will be required to meet
the requirements of the regulations until the conveyance reaches the
U.S. border. In addition, this rule allows us to assess civil penalties
for those individuals who are not in compliance.
Under the heading, ``Executive Order 12866 and Regulatory
Flexibility Act,'' we estimate that this rule will increase operating
costs for owners and commercial shippers who transport equines to
slaughtering facilities by an amount somewhere between $300 and several
thousand dollars annually for an entity that transports 500 equines per
year. However, we added that the data suggested that the economic
consequences for most entities would fall somewhere near the minimum
point on the impact scale because many entities are already in
compliance with at least some of the rule's provisions.
One commenter stated that the USDA does nothing to prevent the
shipment of diseased animals for human consumption.
FSIS has regulations that provide for the antemortem and postmortem
examination of equines to ensure that equines with certain diseases are
not slaughtered or used for the purposes of human consumption.
One commenter stated that all horses shipped for slaughter should
have a negative Coggins test performed within 6 months of transport due
to possible zoonosis and also because horses are transported near
highways and pass
[[Page 63610]]
horses on private farms and could pose a disease risk. One commenter
stated that Coggins tests are required for horses that enter or exit
Pennsylvania.
A Coggins test is the common name for the agar gel immunodiffusion
test used for the diagnosis of equine infectious anemia (EIA). The
purpose of this rule is to provide for the humane transport of equines
to slaughtering facilities. Other regulations are concerned with the
potential transmission of disease, including 9 CFR part 75, which
restricts the interstate movement of horses that are positive to a test
for EIA. Also, all States require a Coggins test for equines entering
the State. At this time, there is no evidence that EIA can be
contracted by humans through the consumption of meat from an equine
infected with EIA. However, equines infected with EIA are not allowed
to be used for human consumption. The transmission of EIA infection
from equines on a conveyance to equines on farms that are passed by the
conveyance is a low risk and highly unlikely because a number of
factors have to be present, such as presence of tabanidaes (horse
flies) and high viremia in the infected equine.
Several commenters stated that all meetings regarding the statute
were not open to all interested parties. One commenter stated that,
contrary to the statements in the proposal, consensus was not reached
on the proposed regulations, and certain humane organizations opposed
the regulations.
We did not state in the proposed rule that the proposal was a
consensus-based document. We stated that, prior to drafting the
proposed rule, APHIS representatives established a working group that
included participants from other parts of the USDA, including FSIS and
the Agricultural Marketing Service. In addition, APHIS attended two
meetings regarding the statute that were hosted by humane organizations
and attended by representatives of the equine, auction, slaughter, and
trucking industries and the research and veterinary communities. At
these meetings, we had an opportunity to listen to diverse opinions. We
have relied on the proposed rule and public comment period to obtain
comments from all interested persons.
One commenter stated that APHIS should remove ``minimum'' in the
summary in reference to the standards to ensure the humane movement of
equines to slaughtering facilities. This commenter also added that the
summary should be revised to state ``humane movement and treatment of
equines to slaughtering facilities via commercial transportation.''
The summary only serves as a brief description of the document and
is not intended to prove a point or argue a case.
Two commenters stated that proposed rules should be made available
to everyone, and one commenter stated that APHIS should disclose them
to the media, especially the press.
All proposed rules are published in the Federal Register, which
satisfies the legal requirements to notify the public. In addition,
APHIS makes all of its proposed rules available on the Internet at
http://www.aphis.usda.gov/ppd/rad/webrepor.html and advises various
media through distribution of press releases.
Two commenters stated that they must pay taxes on transactions that
involve horses, but entities involved in the transportation of horses
to slaughter, including slaughtering facilities, do not. Many
commenters stated that they were opposed to the slaughter of equines.
One commenter stated that, rather than slaughter horses, zoos should be
established or States zoned to hold the horses. These comments are
outside the scope of this rulemaking.
Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule, with the
changes discussed in this document. In addition, we are making minor,
nonsubstantive, editorial changes in the rule for clarity.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be significant for the purposes of Executive
Order 12866 and, therefore, has been reviewed by the Office of
Management and Budget.
In accordance with 5 U.S.C. 604, we have performed a final
regulatory flexibility analysis for this rule, which is set out below.
Our discussion of the anticipated economic effects of this rule on
small entities also serves as our cost-benefit analysis under Executive
Order 12866.
This rule is intended to fulfill a responsibility given to the
Secretary of Agriculture in the 1996 Farm Bill. Sections 901-905 of the
1996 Farm Bill (7 U.S.C. 1901 note) authorize the Secretary of
Agriculture, subject to the availability of appropriations, to issue
guidelines for the regulation of the commercial transportation of
equines for slaughter by persons regularly engaged in that activity
within the United States. In both fiscal years 1998 and 1999, $400,000
was made available to administer this law. The regulations, which
appear as a new part in title 9 of the CFR, are designed to help ensure
the humane transport of equines to slaughtering facilities. The
regulations cover, among other things, food, water, and opportunity for
rest; space on the conveyance; segregation of stallions and other
aggressive equines; completion of an owner-shipper certificate; and
prohibitions on the movement of certain types of equines as well as on
the use of electric prods and conveyances with animal cargo spaces
divided into more than one stacked level.
This rule pertains almost exclusively to the commercial
transportation of slaughter horses because horses account for almost
all equines slaughtered in the United States. Equines are generally
slaughtered for their meat, which is sold for human consumption,
primarily outside the United States. From 1995 through 1997, an average
of 100,467 equines were slaughtered annually in federally inspected
U.S. slaughtering facilities. At the current time, there are three
slaughtering facilities that accept equines in the continental United
States: Two are located in Texas (Ft. Worth and Kaufman), and one is in
Illinois (DeKalb). In 1996, the United States exported 38 million
pounds of horse, ass, and mule meat, with a value of $64 million. Of
the total volume exported in 1996, 29 million pounds, or 76 percent,
was exported to Belgium and France. Slaughter equines represent a
variety of types, and they come from a variety of sources, including
working ranches, thoroughbred racing farms, and pet owners. Equines are
usually slaughtered when they are unfit or unsuitable for riding or
other purposes.
Economic Effects of the Rule on Owners and Commercial Shippers
The ``path'' from source supplier (farmer, rancher, pet owner,
etc.) to slaughtering facility can vary. However, the most common
scenario and the one used for the purpose of this analysis is as
follows: The source suppliers transport their equines to local auction
markets, where the equines are sold to persons who purchase the equines
for the specific purpose of selling them to a slaughtering facility.
(Hereafter, for the purposes of this final regulatory flexibility
analysis, we will refer to persons who sell equines for slaughter as
``owners''; however, in some cases, the owners use agents to conduct
some aspect of the business of purchasing the equines and transporting
and selling them to slaughtering facilities. We will use the term
``owners'' to refer to either the actual owners or their agents.) The
owners consider price lists published by the slaughtering facilities
for equines (the price varies in relation to the
[[Page 63611]]
weight of the equine and the quality of the meat), transportation
costs, and profit requirements to establish the maximum prices that
they will pay for equines at local auctions. Because the owners cannot
usually purchase enough slaughter-quality equines at any one auction to
make it economically feasible to ship the equines directly from the
auction site to the slaughtering facility, the owners transport the
equines back to their own farms or feedlots, usually nearby, where the
equines are stored until such time as the owners can accumulate more
equines from other auctions. Double-deck livestock trailers, which are
the types most often used for transporting equines to slaughtering
facilities, can carry up to about 45 equines each; single-deck trailers
can carry up to about 38 equines each.
When enough equines have been accumulated to comprise a shipment,
the owners transport the equines to the slaughtering facility. Although
owners who ship 2,000 or more equines to slaughter per year are not
uncommon, most owners ship far fewer than that number. In an estimated
75 percent of the cases, owners hire commercial shippers to move the
equines to the slaughtering facilities; in the remaining estimated 25
percent of the cases, owners transport the equines to slaughter in
their own conveyances. Therefore, the regulations will apply both to
owners of equines destined for slaughter and to commercial shippers who
transport such equines to slaughtering facilities. We estimate that
approximately 200 owners and commercial shippers will be affected by
this rule. Based on the average number of equines slaughtered in the
United States per year (approximately 100,000) and on the estimated
number of potentially affected owners and commercial shippers
(approximately 200), the average number of equines transported annually
to slaughter per affected entity would be 500.
This rule will require that, for a period of not less than 6
consecutive hours immediately prior to the equines being loaded on the
conveyance, each equine be provided access to food and water and the
opportunity to rest. As indicated above, the owners generally have
possession of the equines immediately prior to their being loaded onto
conveyances for transport to slaughtering facilities. In those cases
where the owners hire commercial shippers, the latter do not take
possession of the equines until they are loaded onto the conveyance.
Furthermore, when commercial shippers are hired, they are normally not
in the presence of the equines for the full 6-hour period prior to
loading. For these reasons, it can be assumed that the owners, not
commercial shippers, would be responsible for fulfilling the preloading
requirements of this rule. In addition, the owners are more likely than
commercial shippers to have the facilities necessary to meet the
preloading requirements.
This requirement is unlikely to impose a hardship on affected
entities. While in the possession of the owners, equines are usually
housed on farms or in feedlots, where they have access to food, water,
and rest. Owners have an incentive to provide equines awaiting
transport to a slaughtering facility with food, water, and rest because
malnourished equines have a reduced slaughter value and dead equines
have no slaughter value. Furthermore, most equines are stored on farms
or in feedlots for 6 consecutive hours or more because it usually takes
at least that long for owners to accumulate enough equines to fill a
conveyance. At most, the rule would result in owners having to keep
their equines in a farm or feedlot for an additional 6 hours to fulfill
the preloading requirements for the last equines needed to fill a
conveyance. This worst-case scenario assumes that the ``last-in''
equines have not had the required preloading services prior to their
acquisition by the owners. If the last-in equines have had those
services, then the owners would be able to load them onto the
conveyance immediately. For example, owners might be able to stop at an
auction en route to a slaughtering plant and pick up their last-in
equines.
We cannot estimate the precise dollar effects of this requirement
because no hard data is available on the prevalence of slaughter
equines receiving the required food, water, and rest prior to loading.
However, for the reasons stated above, the economic effects would be
minimal. Storing equines in feedlots costs about $2 per day per animal.
(This amount is the typical rental rate for a pen, which includes food
and water.) If an owner had to store a truckload of equines (assume 38)
for a full day, the cost would be $76. The cost for storing 500 equines
(the estimated average number of equines shipped annually to slaughter
per affected entity) would be $1,000.
This rule will require that owners or commercial shippers sign an
owner-shipper certificate for each equine being transported to a
slaughtering facility. Among other things, the owner-shipper
certificate will include a statement that the equine has received the
required preloading services. If, as a result of this requirement,
commercial shippers load fewer equines per conveyance, the shippers
should not be affected because they typically charge owners a flat rate
to transport equines to slaughtering facilities regardless of the
number of equines on the conveyance. For owners who use their own
vehicles for transportation, fewer equines per conveyance translates
into increased costs. As an example, assume that it costs an owner
$1,850 ($1.85 per mile--a representative average rate for commercial
shipment of slaughter equines--times 1,000 miles) to transport a
truckload of equines in the person's own conveyance. Assume also that,
as a result of this rule, the owner could ship only 35 equines in a
particular shipment, 3 fewer than the 38 that would have been shipped
had the rule not been in effect. Using that data, the owner's
transportation costs on a per-equine basis for that particular shipment
would increase by 8.6 percent, from $48.68 to $52.86. The owner would
incur similar costs if the owner secured the services of a commercial
shipper.
This rule will require that any equine that has been on the
conveyance for 28 consecutive hours or more without food, water, and
the opportunity to rest be offloaded and, for at least 6 consecutive
hours, provided with food, water, and the opportunity to rest. This
rule will also require that each equine be provided with enough space
on the conveyance to ensure that no animal is crowded in a way likely
to cause injury or discomfort. Finally, this rule will require that
stallions and other aggressive equines be segregated from each other
and all other equines on the conveyance.
Available data suggest that the ``28-hour rule'' should not pose a
problem for the vast majority of slaughter equine transporters.
Officials at two of the U.S. equine slaughtering facilities, including
the largest facility, indicate that, barring unusual circumstances, the
overwhelming majority of equines arrive at the slaughtering facilities
in 28 hours or less. Indeed, there is reason to believe that few
equines actually fit the ``worst-case'' scenario in terms of travel
distance--equines transported from the east or west coasts to the
slaughtering facilities, which are all located in the central part of
the United States. Equines on the east coast, at least from the State
of Maryland northward, as well as those on the west coast and in the
States of Montana and Idaho, are usually transported to Canadian
slaughtering facilities. (For example, the slaughtering plant at
Massueville, Quebec, is about 100 miles from the port of entry at
Champlain, NY. For transporters in the northeastern part of
[[Page 63612]]
the United States, the Massueville plant is closer than any of the U.S.
plants.) Furthermore, even for equines that do originate at east and
west coast locations, the time spent on conveyances is reduced
considerably by the common transport practice of using two different
drivers on long trips. This practice allows the equines to be
transported virtually nonstop because one person can drive while the
other rests, thereby avoiding federally mandated rest periods that
apply in a single-driver situation. Assuming an average speed of 55 mph
and two different drivers, and allowing 1\1/2\ hours for loading and 2
hours for refueling and meal stops, even a trip as long as 1,300 miles
would take only about 27 hours.
If equines do have to be offloaded for feeding, rest, etc., while
en route to a slaughtering facility, transporters would incur
additional costs. As stated previously, pens can generally be rented at
a rate of about $2 per day per equine. (The rent for a 6-hour period is
unknown but, presumably, it would be less than the full-day fee.) In
addition to the pen rental fee, transporters would have to spend time
unloading the equines. Also, they may have to: (1) Adjust routes and
schedules to find pens to accommodate the equines; (2) wait while they
are being serviced; and (3) reload them after they have been serviced.
These activities would add to the cost of servicing equines at
intermediate points.
This rule will also require that, during transport, equines must be
provided with enough space to ensure that they are not crowded in a way
that is likely to cause injury or discomfort. One source of injury and
discomfort, double-deck trailers, will be banned in 5 years. (See
``Alternatives Considered,'' below, for a discussion of why we selected
a 5-year phase-in period rather than a shorter time.) Overcrowding can
also occur in single-deck (also called straight-deck) trailers, which
are used to transport equines to a lesser extent than double-deck
trailers. The requirement concerning adequate space could translate
into fewer equines per conveyance. As stated previously, commercial
shippers typically charge owners a flat rate to transport their
equines, so the possibility of fewer equines per shipment should not
result in less revenue for commercial shippers. For owners, however,
fewer equines per conveyance translates into increased costs,
regardless of whether the owners hire commercial shippers or use their
own vehicles for transportation.
The requirement that aggressive equines be segregated during
transport is not likely to have a significant impact. Available data
suggests that such segregation is already common practice. Owners have
an incentive to make sure that aggressive equines are segregated
because equines that arrive at the slaughtering facilities injured as
the result of biting and kicking en route command lower market values.
The segregation of equines requires that transporters spend more time
and effort during loading, but that added time and effort is considered
to be relatively minor. Nor should most transporters have to buy
special equipment, because livestock trailers usually come equipped
with devices, such as swing gates, that permit animal segregation. As a
final point in this regard, relatively few stallions are transported
for slaughter. USDA personnel stationed at two of the slaughtering
facilities estimate that no more than about 5 percent of the equines
arriving for slaughter are stallions.
This rule will require that an owner-shipper certificate be
completed for each equine prior to departing for the slaughtering
facility. The certificate must describe, among other things, the
equine's physical characteristics (color, sex, permanent brands, etc.),
and it must show the number of the animal's USDA backtag. It must also
certify the equine's fitness to travel and note any special care and
handling needs during transit (e.g., segregation of stallions). An
equine will be fit to travel if it: (1) Can bear weight on all four
limbs; (2) can walk unassisted; (3) is not blind in both eyes; (4) is
older than 6 months of age; and (5) is not likely to give birth in
transit. Affected entities will not need the services of a veterinarian
in order to make the fitness-to-travel determination. This rule will
require that either the owners or the commercial shippers sign the
certificate and that the owner-shipper certificate accompany the equine
to the slaughtering facility.
This requirement for an owner-shipper certificate will create
additional paperwork for both owners and commercial shippers. As with
the other preloading services discussed above, it is reasonable to
assume that the responsibility for providing the data on the
certificate will generally rest with the owners, not the commercial
shippers. The owners have possession of the equines prior to departing
for the slaughtering facility and presumably are more qualified to
provide the data required by the owner-shipper certificate. It is also
reasonable to assume that the responsibility for obtaining and
installing the USDA backtag will be theirs, not the commercial
shippers. The owners will not incur a cost for obtaining the backtags,
which are available free of charge from a variety of sources. The
backtags are adhesive and are attached simply by sticking them on the
equine's back, so owners will not incur installation costs.
The added administrative costs that owners will incur as a result
of having to complete and sign the owner-shipper certificate is
difficult to quantify. Assuming that it takes 5 minutes to complete
each certificate, an owner who ships 500 equines to slaughter annually
will have to spend about 42 hours per year complying with the rule.
Assuming a labor rate of $7 per hour, the 42 hours translates into
added costs of about $300 per year. For reasons explained earlier, the
added administrative costs for commercial shippers will likely be less
than those for owners.
This rule will allow the use of electric prods only in life-
threatening situations and will prohibit the transport of equines to
slaughter on conveyances divided into more than one level, such as
double-deck trailers, 5 years after publication of this final rule. The
restriction on the use of electric prods should not pose a burden
because effective, low-cost substitutes are available for use in non-
life-threatening situations. For example, fiberglass poles with flags
attached, which cost only about $5 each, are considered to be an
effective alternative to electric prods. Any current use of electric
prods by transporters of slaughter equines probably derives from the
traditional use of these devices to assist in moving other livestock,
such as cattle and swine.
The retail cost of a new double-deck livestock trailer averages
about $42,000; single-deck trailers retail for about $38,000 each. The
cost varies depending largely on the model, type of construction, and
optional features. The useful life of the trailers also varies,
depending on such factors as the weight and type of animals hauled and
the needed frequency of cleaning. It is not uncommon, however, for
trailers of both types to provide 10 to 12 years' worth of useful
service.
As discussed previously, double-deck trailers can carry more
equines than single-deck trailers, and some owners and shippers will be
negatively affected by the reduction in the numbers of equines that
could be transported in a single conveyance. Upon publication of this
rule, shippers using floating-deck trailers to transport equines to
slaughtering facilities will need to collapse the decks so that they
create only one level. Conveyances divided permanently into more than
one stacked
[[Page 63613]]
level can be, and are, also used to transport commodities other than
equines, including livestock and produce. In fact, it is estimated that
double-deck trailers in general carry equines no more than about 10
percent of the time they are in use. Upon effect of the ban, commercial
shippers who transport equines to slaughtering facilities could use
their double-deck trailers to transport other livestock and produce.
Owners who use their own double-deck trailers to transport equines to
slaughtering facilities will have to find another use for the equipment
or trade them for single-deck trailers. Owners should be able to sell
their serviceable trailers at fair market value to transporters of
commodities other than equines. Furthermore, some of the double-deck
trailers now in use by owners will need to be taken out of service
within the next 5 years anyway as the result of normal wear and tear
and could be replaced by single-deck trailers.
In conclusion, we do not anticipate that any of the requirements
will have undue onerous economic effects on any affected owners or
commercial shippers. We believe that many transporters of slaughter
equines may already be in compliance with many of the requirements. The
requirement for an owner-shipper certificate will affect all
transporters of slaughter equines, but we have designed the form to
make its preparation as easy as possible. We do not believe that the
completion and maintenance of these certificates will be unreasonably
time-consuming or burdensome. As stated previously, the proposed ``28-
hour rule'' should not pose a problem for the vast majority of
slaughter equine transporters, and the ban on double-deck trailers
should not have a significant economic effect on owners or commercial
shippers because these trailers can be used for other purposes and will
need to be replaced anyway within the next 5 years and could be
replaced with a single-deck trailer.
At a minimum, the rule will require that affected owners and
commercial shippers complete an owner-shipper certificate, an
administrative task that they do not have to perform now. For an entity
that transports 500 equines per year, the average for all potentially
affected entities, the requirement regarding owner-shipper certificates
will translate into added costs of about $300 annually. In a worst-case
scenario, the rule can add several thousand dollars to the annual
operating costs of an entity that transports 500 equines per year. This
worst-case scenario assumes that, at the current time, affected owners
and commercial shippers are engaging in little or no voluntary
compliance with the requirements.
Economic Effects of the Rule on Horse Slaughtering Facilities
Up to this point, the discussion in this final regulatory
flexibility analysis has centered entirely on owners and commercial
shippers, who represent the bulk of the entities affected by this rule.
However, the rule will also impact the three horse slaughtering
facilities currently operating in the continental United States. While
the deferral of the effective date for the prohibition on double-deck
trailers will allow them time to respond to the expected decline in the
number of transporters willing to haul horses to slaughter, these
slaughtering facilities will nonetheless be affected because they will
experience lost business as a result of that expected decline. Some
transporters will choose to keep their double-deck trailers and carry
other commodities (i.e., other than equine) because in their locations
it is more lucrative for them to do so. Other transporters will likely
find that it is not cost effective to haul horses long-distance in
conveyances that have a smaller capacity, i.e., straight-deck and
goose-neck trailers.
The slaughtering facilities will also experience increased hauling
costs over time, because transporters that continue to ship horses to
slaughter will be forced to do so in smaller conveyances. The hauling
cost that slaughtering facilities pay to acquire each horse will
increase, because the number of horses per load (being hauled the same
distance) will be reduced but the hauling cost per load will remain the
same. Officials at one U.S. slaughtering facility indicate that
commercial shippers currently charge a hauling fee of $1.65 per mile if
they have a return load, and $2.25 per mile if they return empty,
regardless of the type of conveyance used. For a trip of 1,000 miles at
$1.65 per mile, the facility's hauling cost per horse is $36.67 with a
double-deck trailer and $43.42 with a straight-deck trailer, an
increase of $6.75 or 18 percent per horse.\2\ For each lot of 1,000
horses delivered to the slaughtering facility, the per horse cost
increase of $6.75 translates into increased costs of $6,750.
---------------------------------------------------------------------------
\2\ This assumes 45 horses on a double-deck trailer and 38
horses on a single-deck trailer.
---------------------------------------------------------------------------
Economic Effects on Small Entities
The Regulatory Flexibility Act requires that agencies consider the
economic effects of rules on small entities (i.e., businesses,
organizations, and governmental jurisdictions). As discussed above, the
entities that will be affected by this rule are owners and commercial
shippers who transport equines to slaughtering facilities and the
slaughtering facilities themselves.
As stated previously, we estimate that approximately 200 entities
will be affected by this rule, most of whom are owners and commercial
shippers. Although the sizes of these entities are unknown, it is
reasonable to assume that most are small by U.S. Small Business
Administration (SBA) standards. This assumption is based on composite
data for providers of the same and similar services in the United
States. In 1993, there were 30,046 U.S. firms in Standard Industrial
Classification (SIC) 4213, a classification category comprising firms
primarily engaged in ``over-the-road'' trucking services, including
commercial shipping. The per-firm average gross receipts for all 30,046
firms that year was $2.6 million, well below the SBA's small-entity
threshold of $18.5 million. Similarly, in 1993, there were 1,671 U.S.
firms in SIC 5159, a classification category that includes horse
dealers. Of the 1,671 firms, 97 percent had fewer than 100 employees,
the SBA's small-entity threshold for those firms.
This rule will result in increased costs for affected entities,
large and small. As indicated above, operating costs will increase
somewhere between about $300 and several thousand dollars annually for
an entity that transports 500 equines per year. However, the available
data suggests that, for most entities, the economic consequences will
fall somewhere near the minimum point on the impact scale because, as
stated previously, many are already in compliance with at least some of
the rule's provisions, such as stallion segregation. Because we did not
have enough data to conclude that even a cost increase of as low as
$300 annually will not be significant for most of the potentially
affected entities, we requested public comment on the potential
economic impact of the proposal on small entities.
We received several comments regarding the initial regulatory
flexibility analysis.
One commenter stated that the effect of the rule is so minimal that
the small entities are the ``winners'' at an impact of $300 per year or
$25 per month. Another commenter stated that APHIS put more emphasis on
not creating financial hardship for the entities involved than on what
Congress mandated regarding the humane transport of equines to
slaughter.
We believe that these regulations will help ensure the humane
movement of
[[Page 63614]]
equines to slaughtering facilities via commercial transportation.
However, we do not believe that small entities are not affected. In
fact, in the discussion under the heading, ``Executive Order 12866 and
Regulatory Flexibility Act,'' we stated that the regulations would have
a negative economic effect on affected entities, large and small. We
determined that operating costs would increase somewhere between about
$300 and several thousand dollars annually for an entity that
transports 500 equines per year, which would be a negative impact on
these entities. However, we stated that, for most entities, the
economic consequences of the regulations would fall somewhere near the
minimum point on the impact scale because many entities are already in
compliance with at least some of the requirements in part 88.
One commenter stated that the number of affected entities was
understated because certain entities were not counted. Commercial
airlines; air and sea cargo carriers; vendors that supply packing
plants; feed manufacturers; and suppliers of veterinary supplies and
medications were among the entities the commenter cited.
We stated above that the entities that would be affected by this
rule were owners and commercial shippers who transport equines to
slaughtering facilities and the slaughtering facilities themselves.
These are the primary entities that would be directly affected by this
rule. It is possible that these regulations may indirectly affect other
entities, including commercial airlines, vendors, and feed
manufacturers; however, these entities are not directly affected by
this rule, and this rule should not have a significant economic effect
on them.
Alternatives Considered
The Regulatory Flexibility Act requires Federal agencies
promulgating new regulations to consider alternatives that will lessen
the economic effects of the regulations on affected small entities. In
developing the proposed rule, we considered many alternatives, some of
which are discussed below. In developing the proposed program to carry
out the statute, we established a working group that included
participants both from within the agency as well as from other parts of
USDA, including FSIS and AMS. In addition, APHIS representatives
attended two meetings about the statute hosted by humane organizations
and attended by representatives of the equine, auction, slaughter, and
trucking industries and the research and veterinary communities.
We considered requiring that owners and commercial shippers of
equines destined for slaughter secure the services of a veterinarian to
certify the equines' fitness for travel. However, this rule allows
owners and commercial shippers to certify the equines' fitness to
travel themselves. In addition, we considered various alternatives with
regard to the types of equines that would be prohibited from shipment.
After much consideration, we are prohibiting the shipment of equines
that are unable to bear weight on all four limbs, unable to walk
unassisted, blind in both eyes, less than 6 months of age, and likely
to give birth during shipment. We believe that we must prohibit the
shipment to slaughter of equines in these five categories to carry out
congressional intent under the statute for ensuring the humane
transport of equines for slaughter. In addition, we considered many
allowable time frames for equines to be on conveyances without access
to food and water; the proposed 28-hour period is based on available
data and input from interested and potentially affected parties.
Finally, in regard to the prohibition on the transport of slaughter
equines in any type of conveyance divided into more than one stacked
level, we determined that such a ban is necessary to ensure the humane
transport of equines to slaughtering facilities. However, this rule
would allow the use of double-deck trailers for a period of 5 years
following publication of this rule to lessen the effect of the ban on
affected entities.
The Regulatory Flexibility Act also requires that Federal agencies
consider the use of performance-based rather than design-based
standards. In keeping with this requirement and the direction provided
in the conference report to employ performance-based rather than
engineering-based standards to the extent possible, the requirements
included in the proposed rule are primarily performance-based. As
examples, the rule's requirements for design of the conveyance, space
allotted per equine on the conveyance, and manner of driving the
conveyance are all performance-based.
For this rule, we also considered establishing the effective date
of the ban on double-deck trailers at various points of time in the
future, ranging from 6 months to 10 years after the rule's publication.
We chose a 5-year effective date because we believe it provides a
strategy for steadily improving the welfare of equines transported to
slaughter. For reasons discussed below, a shorter period could have an
onerous impact on the slaughter horse industry and result in unintended
consequences for equines.
As discussed above, hauling costs for slaughtering facilities will
increase as a result of owners and commercial shippers using smaller
conveyances, and to the extent that the transition to a new single-deck
system results in more trips at the higher, empty backhaul rate. In
this regard, slaughtering facility officials believe that transporters
who decide to continue shipping horses in the new single-deck
environment will need time to find markets or customers with
alternative products to haul, thereby avoiding empty backhauls and
saving the facilities money. As indicated above, transporters charge
one slaughtering facility a hauling fee of $1.65 per mile if they have
a return load and $2.25 per mile if they return empty. For one trip of
1,000 miles, the savings for that facility would be $600 if the
transporter is able to secure a return load. For 100 trips, the savings
would be $60,000.
Slaughtering facility officials believe that they also need a
deferral of the effective date for the prohibition on double-deck
trailers to allow them time to respond to the expected decline in the
number of transporters willing to haul horses to slaughter.
Specifically, they have stated that they need time to budget and to
arrange for financing on equipment they may need to acquire if they
must haul horses on their own because commercial shippers and owners
will not. The largest facility currently owns two tractors and one
straight-deck trailer and estimates that it would have to acquire about
10 additional tractor trailers in order to do all of its own hauling.
One new tractor costs approximately $100,000, and one new single-deck
trailer costs approximately $38,000.
Officials at one slaughtering facility believe that, because the
profit margin for their operation is already very thin (due in part to
the financial burden imposed by the new European Union Additional
Residue Testing Program), the facility could not make the transition to
single-deck trailers in 6 months.\3\ However, the same officials
believe that, with a gradual transition,
[[Page 63615]]
over a 5-year period, they would be able to plan accordingly and the
facility might survive. They point out that their facility, which
generates export sales exclusively, may be forced to close regardless
of the time frame imposed by this rule, but the facility's chances of
remaining open would be substantially improved with a 5-year phase-in.
---------------------------------------------------------------------------
\3\ The European Union established Maxxam Laboratory, Inc.
(Maxxam) in Canada as the North American residue testing facility.
Maxxam charged the horse slaughter facilities in the United States
$130,000 start-up costs; as a direct result, one facility, Central
Nebraska Packing in North Platte, NE., closed its operation. The
three facilities in Canada in direct competition with the U.S.
facilities are subsidized by the Canadian government for both start-
up and future testing fees. This places the U.S. facilities at a
financial disadvantange with their Canadian competitors.
---------------------------------------------------------------------------
If the facility closes, we believe it likely that horses in the
United States that are intended for slaughter will be trucked to
feedlots in Canada or Mexico, ostensibly as saddle horses, then go to
slaughter. If that happens, we will have no jurisdiction over those
movements because our statutory authority to regulate is limited to the
commercial transportation of horses to slaughter and to movements to
slaughter within the United States. Thus, a critical factor in our
decision to use a 5-year time frame for the ban on double-deck trailers
is our belief that if the rule has too great an impact on horse
slaughtering facilities in the United States, our rule will not provide
equines transported to slaughter the protection that we intend.
The information collection and recordkeeping requirements contained
in this rule were described in the proposed rule and have been approved
by the Office of Management and Budget. See ``Paperwork Reduction
Act,'' below.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule: (1) Preempts all State and local laws
and regulations that are in conflict with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. et seq.), the information collection or
recordkeeping requirements included in this final rule have been
approved by the Office of Management and Budget (OMB). The assigned OMB
control number is 0579-0160.
List of Subjects
9 CFR Part 70
Administrative practice and procedure.
9 CFR Part 88
Animal welfare, Horses, Penalties Reporting and recordkeeping
requirements, Transportation.
Accordingly, we are amending 9 CFR, chapter I, subchapter C, as
follows:
PART 70--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER CERTAIN ACTS
1. The authority citation for part 70 is revised to read as
follows:
Authority: 21 U.S.C. 111, 112, 114a, 114a-1, 115, 117, 120, 122,
123, 125-127, 134b, 134c, 134e, and 134f; 7 CFR 2.22, 2.80, 371.4.
2. In Sec. 70.1, the list of statutory provisions is amended by
adding at the end of the list the following:
Sec. 70.1 Scope and applicability of rules of practice.
* * * * *
Sections 901-905 of the Federal Agriculture Improvement and
Reform Act of 1996 (7 U.S.C. 1901 note).
* * * * *
3. A new part 88 is added to read as follows:
PART 88--COMMERCIAL TRANSPORTATION OF EQUINES FOR SLAUGHTER
Sec.
88.1 Definitions.
88.2 General information.
88.3 Standards for conveyances.
88.4 Requirements for transport.
88.5 Requirements at a slaughtering facility.
88.6 Violations and penalties.
Authority: 7 U.S.C. 1901, 7 CFR 2.22, 2.80, 371.4.
Sec. 88.1 Definitions.
The following definitions apply to this part:
APHIS. The Animal and Plant Health Inspection Service of the U.S.
Department of Agriculture.
Commercial transportation. Movement for profit via conveyance on
any highway or public road.
Conveyance. Trucks, tractors, trailers, or semitrailers, or any
combination of these, propelled or drawn by mechanical power.
Equine. Any member of the Equidae family, which includes horses,
asses, mules, ponies, and zebras.
Euthanasia. The humane destruction of an animal by the use of an
anesthetic agent or other means that causes painless loss of
consciousness and subsequent death.
Owner/shipper. Any individual, partnership, corporation, or
cooperative association that engages in the commercial transportation
of more than 20 equines per year to slaughtering facilities, except any
individual or other entity who transports equines to slaughtering
facilities incidental to his or her principal activity of production
agriculture (production of food or fiber).
Owner-shipper certificate. VS Form 10-13,\1\ which requires the
information specified by Sec. 88.4(a)(3) of this part.
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\1\ Forms may be obtained from the National Animal Health
Programs Staff, Veterinary Services, APHIS, 4700 River Road Unit 43,
Riverdale, MD 20737-1231.
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Secretary. The Secretary of Agriculture.
Slaughtering facility. A commercial establishment that slaughters
equines for any purpose.
Stallion. Any uncastrated male equine that is 1 year of age or
older.
USDA. The U.S. Department of Agriculture.
USDA backtag. A backtag issued by APHIS that conforms to the eight-
character alpha-numeric National Backtagging System and that provides
unique identification for each animal.
USDA representative. Any employee of the USDA who is authorized by
the Deputy Administrator for Veterinary Services of APHIS, USDA, to
enforce this part.
Sec. 88.2 General information.
(a) State governments may enact and enforce regulations that are
consistent with or that are more stringent than the regulations in this
part.
(b) To determine whether an individual or other entity found to
transport equines to a slaughtering facility is subject to the
regulations in this part, a USDA representative may request from any
individual or other entity who transported the equines information
regarding the business of that individual or other entity. When such
information is requested, the individual or other entity who
transported the equines must provide the information within 30 days and
in a format as may be specified by the USDA representative.
Sec. 88.3 Standards for conveyances.
(a) The animal cargo space of conveyances used for the commercial
transportation of equines to slaughtering facilities must:
(1) Be designed, constructed, and maintained in a manner that at
all times protects the health and well-being of the equines being
transported (e.g., provides
[[Page 63616]]
adequate ventilation, contains no sharp protrusions, etc.);
(2) Include means of completely segregating each stallion and each
aggressive equine on the conveyance so that no stallion or aggressive
equine can come into contact with any of the other equines on the
conveyance;
(3) Have sufficient interior height to allow each equine on the
conveyance to stand with its head extended to the fullest normal
postural height; and
(4) Be equipped with doors and ramps of sufficient size and
location to provide for safe loading and unloading.
(b) Equines in commercial transportation to slaughtering facilities
must not be transported in any conveyance that has the animal cargo
space divided into two or more stacked levels, except that conveyances
lacking the capability to convert from two or more stacked levels to
one level may be used until December 7, 2006. Conveyances with
collapsible floors (also known as ``floating decks'') must be
configured to transport equines on one level only.
Sec. 88.4 Requirements for transport.
(a) Prior to the commercial transportation of equines to a
slaughtering facility, the owner/shipper must:
(1) For a period of not less than 6 consecutive hours immediately
prior to the equines being loaded on the conveyance, provide each
equine appropriate food (i.e., hay, grass, or other food that would
allow an equine in transit to maintain well-being), potable water, and
the opportunity to rest;
(2) Apply a USDA backtag \2\ to each equine in the shipment;
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\2\ USDA backtags are available at recognized slaughtering
establishments and specifically approved stockyards and from State
representatives and APHIS representatives. A list of recognized
slaughtering establishments and specifically approved stockyards may
be obtained as indicated in Sec. 78.1 of this chapter. The terms
``State representative'' and ``APHIS representative'' are defined in
Sec. 78.1 of this chapter.
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(3) Complete and sign an owner-shipper certificate for each equine
being transported. The owner-shipper certificate for each equine must
accompany the equine throughout transit to the slaughtering facility
and must include the following information, which must be typed or
legibly completed in ink:
(i) The owner/shipper's name, address, and telephone number;
(ii) The receiver's (destination) name, address, and telephone
number;
(iii) The name of the auction/market, if applicable;
(iv) A description of the conveyance, including the license plate
number;
(v) A description of the equine's physical characteristics,
including such information as sex, breed, coloring, distinguishing
markings, permanent brands, tattoos, and electronic devices that could
be used to identify the equine;
(vi) The number of the USDA backtag applied to the equine in
accordance with paragraph (a)(2) of this section;
(vii) A statement of fitness to travel at the time of loading,
which will indicate that the equine is able to bear weight on all four
limbs, able to walk unassisted, not blind in both eyes, older than 6
months of age, and not likely to give birth during the trip;
(viii) A description of any preexisting injuries or other unusual
condition of the equine, such as a wound or blindness in one eye, that
may cause the equine to have special handling needs;
(ix) The date, time, and place the equine was loaded on the
conveyance; and
(x) A statement that the equine was provided access to food, water,
and rest prior to transport in accordance with paragraph (a)(1) of this
section; and
(4) Load the equines on the conveyance so that:
(i) Each equine has enough floor space to ensure that no equine is
crowded in a way likely to cause injury or discomfort; and
(ii) Each stallion and any aggressive equines are completely
segregated so that no stallion or aggressive equine can come into
contact with any other equine on the conveyance.
(b) During transit to the slaughtering facility, the owner/shipper
must:
(1) Drive in a manner to avoid causing injury to the equines;
(2) Observe the equines as frequently as circumstances allow, but
not less than once every 6 hours, to check the physical condition of
the equines and ensure that all requirements of this part are being
followed. The owner/shipper must obtain veterinary assistance as soon
as possible from an equine veterinarian for any equines in obvious
physical distress. Equines that become nonambulatory en route must be
euthanized by an equine veterinarian. If an equine dies en route, the
owner/shipper must contact the nearest APHIS office as soon as possible
and allow an APHIS veterinarian to examine the equine. If an APHIS
veterinarian is not available, the owner/shipper must contact an equine
veterinarian;
(3) Offload from the conveyance any equine that has been on the
conveyance for 28 consecutive hours and provide the equine appropriate
food, potable water, and the opportunity to rest for at least 6
consecutive hours; and
(4) If offloading is required en route to the slaughtering
facility, the owner/shipper must prepare another owner-shipper
certificate as required by paragraph (a)(2) of this section and record
the date, time, and location where the offloading occurred. In this
situation, both owner-shipper certificates would need to accompany the
equine to the slaughtering facility.
(c) Handling of all equines in commercial transportation to a
slaughtering facility shall be done as expeditiously and carefully as
possible in a manner that does not cause unnecessary discomfort,
stress, physical harm, or trauma. Electric prods may not be used on
equines in commercial transportation to a slaughtering facility for any
purpose, including loading or offloading on the conveyance, except when
human safety is threatened.
(d) At any point during the commercial transportation of equines to
a slaughtering facility, a USDA representative may examine the equines,
inspect the conveyance, or review the owner-shipper certificates
required by paragraph (a)(3) of this section.
(e) At any time during the commercial transportation of equines to
a slaughtering facility, a USDA representative may direct the owner/
shipper to take appropriate actions to alleviate the suffering of any
equine. If deemed necessary by the USDA representative, such actions
could include securing the services of an equine veterinarian to treat
an equine, including performing euthanasia if necessary.
(f) The individual or other entity who signs the owner-shipper
certificate must maintain a copy of the owner-shipper certificate for 1
year following the date of signature.
Sec. 88.5 Requirements at a slaughtering facility.
(a) Upon arrival at a slaughtering facility, the owner/shipper
must:
(1) Ensure that each equine has access to appropriate food and
potable water after being offloaded;
(2) Present the owner-shipper certificates to a USDA
representative;
(3) Allow a USDA representative access to the equines for the
purpose of examination; and
(4) Allow a USDA representative access to the animal cargo area of
the conveyance for the purpose of inspection.
(b) If the owner/shipper arrives during normal business hours, the
owner/shipper must not leave the premises of
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a slaughtering facility until the equines have been examined by a USDA
representative. However, if the owner/shipper arrives outside of normal
business hours, the owner/shipper may leave the premises but must
return to the premises of the slaughtering facility to meet the USDA
representative upon his or her arrival.
(c) Any owner/shipper transporting equines to slaughtering
facilities outside of the United States must present the owner-shipper
certificates to USDA representatives at the border.
Sec. 88.6 Violations and penalties.
(a) The Secretary is authorized to assess civil penalties of up to
$5,000 per violation of any of the regulations in this part.
(b) Each equine transported in violation of the regulations of this
part will be considered a separate violation.
(Approved by the Office of Management and Budget under control
number 0579-0160.)
Done in Washington, DC, this 3rd day of December 2001.
Bill Hawks,
Under Secretary, Marketing and Regulatory Programs.
[FR Doc. 01-30259 Filed 12-6-01; 8:45 am]
BILLING CODE 3410-34-U