[Federal Register Volume 64, Number 96 (Wednesday, May 19, 1999)]
[Proposed Rules]
[Pages 27210-27221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12577]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 64, No. 96 / Wednesday, May 19, 1999 /
Proposed Rules
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 70 and 88
[Docket No. 98-074-1]
RIN 0579-AB04
Commercial Transportation of Equines to Slaughter
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing to establish regulations pertaining to the
commercial transportation of equines to slaughtering facilities. We are
proposing these regulations to 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 proposed regulations is to establish
minimum standards to ensure the humane movement of equines to
slaughtering facilities via commercial transportation. As directed by
Congress, the proposed regulations cover, among other things, the food,
water, and rest provided to such equines. The proposed regulations
would also require the shipper of the equines to take certain actions
in loading and transporting the equines and would require that the
shipper or owner of the equines certify that the commercial
transportation meets certain requirements. In addition, the proposed
regulations would 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.
DATES: Consideration will be given only to comments received on or
before July 19, 1999.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 98-074-1, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please
state that your comments refer to Docket No. 98-074-1. Comments
received may be inspected at USDA, room 1141, South Building, 14th
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and
4:30 p.m., Monday through Friday, except holidays. Persons wishing to
inspect comments are requested to call ahead on (202) 690-2817 to
facilitate entry into the comment reading room.
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; or e-mail:
timothy.r.cordes@usda.gov.
SUPPLEMENTARY INFORMATION:
Background
We are proposing to establish 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 he 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, from the Assistant Secretary for Marketing and Regulatory
Programs 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 stated 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 stated that, to the
[[Page 27211]]
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.
APHIS has thoroughly researched the issue of transporting equines
to slaughter. Upon learning of the statute, APHIS established a working
group that included participants from other parts of the U.S.
Department of Agriculture (USDA), including the Food Safety and
Inspection Service (FSIS) and the Agricultural Marketing Service (AMS),
to develop an appropriate and effective program for carrying out the
statute. In addition, to get public input, APHIS 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.
APHIS used appropriations received late in FY 1998 for research to
gather scientific data for the proposed regulations. We funded research
by the Department of Animal Sciences of Colorado State University
concerning the physical condition of equines upon arrival at
slaughtering facilities via commercial transportation. The researchers
observed equines being sold for slaughter at an auction, monitored
trailer loads of equines arriving at slaughtering facilities, and
examined the equines ante and post mortem for signs of physical trauma.
We also funded research at Texas A&M University and the University of
California at Davis regarding the effects of water deprivation in
equines. The studies showed that equines deprived of water can begin to
experience serious physiologic distress within 24 hours if the equines
did not have access to water in the 6-hour period before deprivation
occurred. Moreover, equines that had access to water in the 6-hour
period before deprivation occurred did not experience serious
physiologic distress for up to 30 hours without further access to
water. Finally, we funded research at the University of California at
Davis concerning stress in equines being shipped to slaughtering
facilities. In that study, equines were loaded on trailers in
California and shipped to a slaughtering facility in Texas where they
were tested for signs of stress. We have used the data obtained from
these research projects in developing the proposed regulations.
In addition, to help shippers of slaughter equines ensure the
humane transport of the equines, APHIS will allocate funds for public
information efforts. AMS has developed a series of informational
materials regarding the humane transport of specific types of
livestock. We are working with AMS to develop and disseminate
educational materials about the humane transport of equines. To obtain
further information about the research or the educational materials
just described, contact the person listed in this document under FOR
FURTHER INFORMATION CONTACT.
We are proposing 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 are proposing to divide
part 88 into six sections: Sec. 88.1-Definitions, Sec. 88.2-General
information, Sec. 88.3-Standards for onveyances, Sec. 88.4-Requirements
for transport, Sec. 88.5-Requirements at a slaughtering facility, and
Sec. 88.6-Violations and penalties. A description of the proposed
regulations in each section and our rationale for them follows this
introductory text. The full text of the proposed regulations is
provided in the rule portion of this document.
The proposed regulations would pertain 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. For practical
reasons, we do not propose to regulate the care of equines destined for
slaughter prior to loading on the conveyance for shipment to the
slaughtering facility. Most shippers acquire equines for sale to
slaughtering facilities at livestock auctions. To acquire enough
slaughter-quality equines to fill a conveyance and make a long-distance
trip to a slaughtering facility economically feasible, shippers often
need to buy a few equines at a time at these auctions over a period of
several weeks. During this period, the equines are maintained at public
feedlots or private residences until a full shipment (about 38 to 45
equines, depending on the conveyance) has been acquired. (This scenario
is described more fully in the section of this document called
``Executive Order 12866 and Regulatory Flexibility Act.'')
We do not believe that it is either necessary for ensuring the
well-being of the equines or logistically possible for us to regulate
the care provided to equines maintained at feedlots or at private
residences prior to shipment to a slaughtering facility. Moreover,
research has shown that the vast majority of injuries caused to equines
in transit to slaughter occur when the equines are actually in transit
or during loading or unloading. We recognize that, in some cases,
shippers may want to deliver a shipment of equines en route to a
slaughtering facility to a feedlot (for fattening or some other
purpose) for a short period of time. In these cases, we would consider
the transport to consist of two segments-from the point of origin of
the shipment to the feedlot and from the feedlot to the slaughtering
facility-and the shipper or shippers would be subject to the
regulations during both segments. (If the shipper during the second
segment of the trip is not the original shipper, then both shippers
would be subject to the regulations.)
These proposed requirements would pertain to inter-and intrastate
transport within the United States and also to the commercial
transportation of equines for slaughter originating in other countries
or being exported to other countries if the equines are transported by
conveyance when in the United States. As examples, the proposed
regulations would apply to the significant number of horses that are
imported annually from Mexico for transport by truck to U.S.
slaughtering facilities and to the significant number of horses from
the United States that are exported annually to Canada by truck for
slaughter at Canadian slaughtering facilities.
As directed by Congress, we have proposed performance-based
regulations wherever possible. We believe that the proposed regulations
would fulfill the intent of Congress under the statute to help ensure
the humane treatment of equines in commercial transit to slaughtering
facilities, and we do not believe that the proposed regulations would
inhibit the viability of such commercial transportation. We welcome
public comments on these proposed regulations.
Proposed Regulations
Proposed Sec. 88.1-Definitions
The proposed Definitions section defines terms used in proposed
part 88. While most of the terms and their proposed definitions are
self-explanatory, a few warrant discussion.
We are proposing to divide the concepts inherent in the statute's
definition of ``commercial transportation'' into two terms: commercial
transportation and conveyance. We are proposing to define commercial
transportation as ``movement for profit via conveyance on any highway
or public road.'' This definition would apply to both interstate and
intrastate movement. We are proposing to define conveyance as ``trucks,
tractors, trailers, or semitrailers,
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or any combination of these, propelled or drawn by mechanical power.''
We are proposing to define owner as ``any individual, partnership,
corporation, or cooperative association that purchases equines for the
purpose of sale to a slaughtering facility'' and 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 occasionally transports equines to slaughtering facilities
incidental to the principal activity of the individual or other entity
in production agriculture.'' In cases in which the owner drives the
conveyance carrying the equines to the slaughtering facility, the owner
would also be the shipper. However, in many cases, owners hire
commercial shippers to transport the equines. As proposed, both owners
and shippers could be subject to the regulations.
The purpose of the definition of shipper is to carry out the
mandate from Congress that ``the object of any prospective regulation
on this matter will be the individual or company which regularly
engages in the commercial transport of equine to slaughter, and will
not extend to individuals or others who periodically transport equine
for slaughter outside of their regular activity.'' We would consider
any person who ships equines to slaughtering facilities more often than
once a year, except for persons or entities who derive the majority of
their income from production agriculture, to be subject to the proposed
regulations.
Finally, we are proposing to define slaughtering facility as ``a
commercial establishment that slaughters equines for any purpose.''
Equines, like other livestock, are slaughtered primarily at commercial
slaughtering facilities for the purpose of human consumption. In
addition, to a lesser extent, equines that are no longer valuable as
live animals are used for purposes such as the manufacture of pet food
and glue. Because the statute does not define ``slaughter facility,''
we believe that we have the authority to regulate the commercial
transportation of equines for slaughter at any commercial facility-not
only facilities that slaughter equines and other animals for human
consumption. Therefore, any shipper who transports live equines to any
facilities for slaughter and processing would be subject to the
proposed regulations.
Proposed Sec. 88.2-General information
The General information section includes two proposed statements:
(1) State governments may enact and enforce regulations that are
consistent with or that are more stringent than the regulations in
proposed part 88; and (2) to determine whether an individual or other
entity who transports equines to slaughtering facilities is subject to
the regulations in proposed part 88, a USDA representative may request
of any individual or other entity information, to be provided within 30
days, regarding the primary business of the individual or other entity
transporting the equines.
Rationale
The first proposed statement conveys our willingness to allow the
States to promulgate and enforce similar or even more stringent
regulations to ensure the humane transport of equines to slaughtering
facilities. The second proposed statement would provide a means by
which USDA representatives enforcing the regulations could obtain
business information about individuals or other entities found to be
transporting equines to slaughtering facilities. Information about the
primary source of income and frequency of shipping equines to
slaughtering facilities of such persons would be necessary to determine
if the individual or other entity meets the proposed definition of
shipper and is, therefore, subject to the regulations in proposed part
88. We believe that the statute gives us the authority to request such
information of anyone who might have information regarding the
principal business of any individual or other entity found to transport
equines to slaughter.
Proposed Sec. 88.3--Standards for Conveyances
We are proposing to require that the animal cargo space of
conveyances used for the commercial transportation of equines to
slaughtering facilities: (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 adequate ventilation, has no
sharp protrusions, etc.); (2) include means of completely segregating
each stallion and 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 design, size, and location to provide for safe
loading and unloading. We are further proposing to prohibit the
commercial transportation of equines to slaughtering facilities in
conveyances with animal cargo spaces divided into two or more stacked
levels, except that conveyances lacking the capability to convert from
two or more stacked levels to one level (``double-deck trailers'') may
be used for 5 years following the publication of a final rule to this
proposed rule. Conveyances with ``floating decks'' (collapsible floors
that allow conversion of the animal cargo space to one, two, or three
stacked levels) would need to be configured to transport equines on one
level only.
Rationale
The proposed requirement concerning the design, construction, and
maintenance of the conveyance is self-explanatory; because the purpose
of the statute is to ensure the humane transport of equines to
slaughtering facilities, the means of conveying the equines must not be
a source of harm to them. As examples, the conveyance must be designed
so that it provides adequate ventilation at all times for the equines,
and it must be constructed and maintained so that no sharp edges or
points that could injure an equine protrude from the walls, floor, or
ceiling.
The proposed requirement concerning segregation of certain equines
derives, in part, directly from the statute, which directs the
Secretary to require the segregation of stallions from other equines
during transit. Research conducted by Colorado State University has
shown that one of the primary causes of injuries to equines being
transported to slaughter is attacks by other equines. Stallions
(uncastrated male equines that are 1 year of age or older, according to
our proposed definition) are known to be aggressive animals that are
easily provoked into attacking other equines. However, research has
shown that aggressive geldings and mares also will attack other equines
when placed together in close quarters. For that reason, we are
proposing to also require the segregation of other aggressive equines.
The remaining three requirements pertaining to adequate headroom,
sufficient doors and ramps, and a prohibition on the transport of
equines in animal cargo spaces divided into two or more stacked levels
are all somewhat related. Research has shown that the use of double-
deck trailers for transporting equines to slaughtering facilities is
likely to cause injuries and trauma to the equines. Double-deck
trailers do not provide adequate headroom for equines, with the
possible exception of foals and yearlings; therefore, adult equines
transported in double-deck trailers can acquire cuts and abrasions to
their
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heads, which scrape the tops of the compartments. In addition, the
equines cannot stand in a normal position with their heads raised. As a
result of having to stand with their heads in a lowered position, they
cannot maintain balance as easily and sustain injuries from falling. In
addition, the ramps used to load animals onto double-deck trailers are
at a relatively steep angle. While other species of animal, such as
sheep, can maneuver the ramps without incident, equines frequently
sustain injuries from being forced up or down the steep inclines.
Because of their long legs and relatively high center of gravity,
equines injure their withers and heads when they jump for the small
opening at the top of a ramp leading out of a double-deck trailer.
The overpasses on most U.S. interstate highways are between 14- to
16-feet high. 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.
Therefore, we believe that no conveyance is capable, under normal
circumstances, of traversing most U.S. highways while carrying equines
standing in a normal postural position on two or more stacked levels.
Moreover, even if a route was chosen that did not involve passage under
overpasses, a conveyance tall enough to transport equines standing in a
normal postural position on two or more stacked levels would be
extremely top-heavy and prone to tipping. For these reasons, 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, and we are proposing to prohibit the commercial
transportation of equines to slaughtering facilities in such
conveyances. However, to ease the burden of this proposed regulation on
the affected entities, we are proposing to allow, for a period of 5
years following publication of a final rule to this proposal, the use
of conveyances that lack the capability to convert from two or more
stacked levels to one.
We arrived at the proposed ``grandfather clause'' of 5 years after
much discussion with interested parties, including representatives of
the trucking and equine industries, at the two meetings hosted by
humane organizations mentioned earlier. The meeting participants came
to a consensus on this issue, and we believe that the proposed
timeframe is appropriate. Livestock trailers not used to haul equines
can be serviceable for approximately 10 years. Trailers used to haul
equines need to be replaced sooner because equines inflict significant
damage to livestock trailers during transport. 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.
Proposed Sec. 88.4--Requirements for Transport
We are proposing various actions that must be taken by persons
engaged in the commercial transportation of equines to slaughtering
facilities.
We would require that, prior to the commercial transportation of
equines to a slaughtering facility, the shipper or owner must: (1) For
a period of not less than 6 consecutive hours prior to the equines
being loaded on the conveyance, provide each equine appropriate food
(i.e., food such as hay or grass that allows the equine to maintain
well-being during transit), potable water, and the opportunity to rest;
(2) apply a USDA backtag to each equine in the shipment; (3) complete
and sign an owner-shipper certificate (described below) for each equine
being transported; and (4) load the equines on the conveyance so that
each equine has enough floor space to ensure that no equine is crowded
in a way likely to cause injury or discomfort and each stallion and
aggressive equine is completely segregated so that no stallion or
aggressive equine can come into contact with any other equine on the
conveyance.
The owner-shipper certificate would need to include the following
information:
(1) The name and address of the shipper and, if the shipper is not
the owner of the equine, the name and address of the owner;
(2) A description of the conveyance, including the license plate
number;
(3) A description of the equine's physical characteristics,
including such information as sex, coloring, distinguishing markings,
permanent brands, and electronic identification, that could be used to
identify the equine;
(4) The number of the USDA backtag applied to the equine;
(5) A statement of fitness to travel, which would have to 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;
(6) A description of anything unusual with regard to the physical
condition of the equine, such as a wound or blindness in one eye, or
any special handling requirements;
(7) The date, time, and place that the equine was loaded on the
conveyance; and
(8) A statement that the equine was provided access to food, water,
and rest prior to loading as required.
We are proposing to require that either the shipper or the owner
must sign the owner-shipper certificate. We are also proposing that the
owner-shipper certificate for each equine must accompany the equine
throughout transit to the slaughtering facility. In situations
described previously in which the transport consists of two segments
(including a stop at a feedlot), then two owner-shipper certificates
would need to be prepared. Moreover, we are proposing to require that
the person who signs the owner-shipper certificate (either the owner or
the shipper) must maintain a copy of the certificate for 1 year
following the date of signature.
We are proposing to require that, during transit to the
slaughtering facility, a 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 provide veterinary assistance as
soon as possible to any equines in obvious physical distress; and (3)
offload from the conveyance any equine that has been on the conveyance
for 28 consecutive hours and provide the equine, for at least 6
consecutive hours, appropriate food, potable water, and the opportunity
to rest. If such offloading is required en route to the slaughtering
facility, a shipper must prepare another owner-shipper certificate
indicating the date, time, and location where the offloading occurred.
We are proposing to require that handling of all equines in
commercial transportation to a slaughtering facility be done as
expeditiously and carefully as possible in a manner that does not cause
unnecessary discomfort, stress, physical harm, or trauma. We are
further proposing to prohibit the use of electric prods for any purpose
on equines in commercial transportation to a slaughtering facility,
including during loading or offloading on the conveyance, except when
human safety is threatened.
Finally, we are proposing to state 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. Moreover, at any time during the
commercial transportation of equines to a slaughtering facility, a USDA
representative may direct a shipper to take appropriate actions to
alleviate the
[[Page 27214]]
suffering of any equine. If deemed necessary by the USDA
representative, such actions could include offloading an ill or injured
equine and securing the services of a veterinary professional to treat
the equine, including performing euthanasia when necessary.
Rationale
We are proposing to require that, for at least 6 hours prior to
being loaded on the conveyance, equines in commercial transportation to
a slaughtering facility be provided with appropriate food, potable
water, and the opportunity to rest because research has shown that
equines that have been provided these things prior to transit can be
transported for at least 28 hours with no adverse health effects.
Access to water is the most serious concern. Many equines do not
experience serious physiologic distress for 30 hours without water if
they have had access to water during the 6-hour period prior to
deprivation. However, after consultation with interested parties at the
two meetings mentioned previously, we believe that the proposed 28-hour
maximum allowable timeframe for deprivation of food, water, and rest
during transport to slaughter is appropriate. This timeframe would
allow for realistic travel times from most points of the United States
to the equine slaughtering plants and would ensure that the equines
would not undergo serious physiologic distress. For these reasons, we
are also proposing to require that any equine that has been on the
conveyance for 28 consecutive hours must be offloaded and, for at least
6 consecutive hours before continuing the journey, provided appropriate
food, potable water, and the opportunity to rest. Adequate amounts of
hay and grass are examples of food that we would consider to be
appropriate; oats are less desirable as they can cause digestive
problems for equines in transit.
We are proposing to require that a shipper apply a USDA backtag to
each equine to facilitate identification of the equines upon arrival at
a slaughtering facility. The owner-shipper certificates would have to
include the USDA backtag number of the equine. A USDA representative
would examine the owner-shipper certificates and the backtags on the
equines to ascertain which equines were identified on which
certificates.
We have several reasons for proposing to require that an owner or
shipper prepare, sign, and maintain for 1 year an owner-shipper
certificate for each equine being transported. As discussed above, the
certificates would include the name and address of the shipper and, if
that person is not the owner of the equines, the name and address of
the owner. The certificates would also include a description of the
equine's physical characteristics and a description of the conveyance,
including the license plate number. All of this information would
likely be necessary for prosecution of persons found to be in violation
of the regulations in proposed part 88.
This information would also be helpful in the traceback of any
stolen equines. The USDA's FSIS has veterinary medical officers
stationed at U.S. slaughtering facilities. Enforcement of the proposed
regulations would primarily be carried out at the slaughtering
facilities (only four currently slaughter equines) in a combined FSIS-
APHIS effort. FSIS already conducts a program to identify stolen
equines that arrive at slaughtering facilities. To assist USDA
representatives in any investigations stemming from the shipment of
equines to slaughtering facilities, we are proposing to require that
the person who signs the owner-shipper certificate (either the shipper
or the owner) maintain a copy of the certificate for 1 year following
signature.
An important purpose of the proposed owner-shipper certificates is
to certify the equine's fitness to travel. As such, we are proposing to
require that the owner-shipper certificate 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. Any equine not meeting these five conditions is
generally considered to be unfit for travel. Equines that cannot bear
weight on all four limbs and equines that are unable to walk unassisted
are likely to fall during transport by conveyance and could incur
serious injury by being stepped on by other equines. Equines that are
blind in both eyes are subject to many injuries during transit and pose
serious danger to other equines on the conveyance and human handlers
because blind equines are easily frightened. Equines 6 months of age or
less being transported by conveyance are subject to injury because of
their relatively diminutive size. Finally, any mare that gives birth
can develop serious complications, and no mare should be subjected to
giving birth on a conveyance filled with other equines, both for her
well-being as well as the well-being of the foal.
We are proposing to require that persons shipping equines to
slaughtering facilities describe anything unusual with regard to the
physical condition of each equine, such as an old wound, as a means of
disclaiming any physical conditions that were present on the equine
prior to the commercial transportation to the slaughtering facility.
With this information, a USDA representative could examine the equine
upon arrival at the slaughtering facility, review the owner-shipper
certificate, and determine whether an injury occurred during transit
and whether it constituted a violation of the regulations. We are also
proposing to require that persons shipping equines to slaughtering
facilities indicate any special handling needs of any equines being
transported.
The certificate would have to include the date, time, and place at
which the equine was placed on the conveyance for movement to the
slaughtering facility so that a USDA representative at the slaughtering
facility could determine whether the equine had been on the conveyance
for longer than 28 hours. Equines that have been on a conveyance for 28
hours would need to be offloaded and provided appropriate food, potable
water, and the opportunity to rest, as previously discussed.
The proposed requirement regarding sufficient floor space on
conveyances transporting equines to slaughtering facilities is self-
explanatory; the proposed requirement regarding segregation of
stallions and other aggressive equines on the conveyances was discussed
previously in this document in the ``Rationale'' section for Sec.
88.3--Standards for Conveyances.
The proposed performance-based requirement regarding driving
conveyances transporting equines to slaughtering facilities is designed
to protect the equines from injury caused by poor driving habits. For
example, drivers of conveyances transporting equines should accelerate
and decelerate slowly and turn corners carefully because sudden starts
or stops or turns taken too quickly can cause equines on board to lose
balance and fall. As stated previously, we are working with USDA-AMS to
develop educational materials regarding the safe transport of equines.
Our proposed requirement regarding observation of the equines not
less than once every 6 hours is intended to help ensure that any
equines that may have fallen or otherwise become physically distressed
en route will not go unnoticed and unattended to for the entire journey
to the slaughtering facility. As stated previously, we are proposing to
require that veterinary assistance be provided as soon as possible to
any equine in obvious physical distress.
[[Page 27215]]
Our proposed requirements regarding handling of equines and taking
appropriate actions to alleviate the suffering of any equine are self-
explanatory. We are proposing to prohibit the use of electric prods on
equines in commercial transportation to slaughtering facilities.
Although electric prods are frequently used to assist in moving cattle
and swine, we believe that these devices cause undue pain and trauma
when used on equines, which have much thinner skins than cattle or
swine. However, we would not consider the use of an electric prod to be
a violation of the regulations in proposed part 88 in situations in
which an equine threatens human safety.
We are proposing to authorize USDA representatives to conduct
examinations and inspections under proposed part 88 at any point during
the commercial transportation of equines to a slaughtering facility so
that regulated entities would know that they may be subject to
inspection prior to arrival at the slaughtering facility. In addition,
allowing USDA inspection of conveyances en route to slaughtering
facilities offers better protection to the equines than conducting
examinations and inspections only at these facilities. For any equine
found to be suffering en route to a slaughtering facility, a USDA
representative could require a shipper to provide veterinary
assistance, including securing the services of a veterinary
professional to treat an injured equine and perform euthanasia if
necessary.
We believe that USDA authority under the statute extends, for
domestic movement, from the point of loading the equines on the
conveyance to offloading them at the slaughtering facility. For equines
transported by conveyance from a point inside the United States to a
slaughtering facility outside the United States, USDA regulation would
end at the border, where the shipper would need to present the owner-
shipper certificates. For equines transported by conveyance from a
point outside the United States to a commercial facility in the United
States for slaughter, USDA regulation would begin upon crossing the
border. However, we would expect the owner-shipper certificates to be
completed at the point of loading the equines (as would be required for
domestic movement of equines to slaughter), so the proposed maximum 28-
hour period for transport without offloading for food, water, and rest
would begin at the point of loading the equines in the foreign country.
Proposed Sec. 88.5--Requirements at a Slaughtering Facility
We are proposing to require that, upon arrival at a slaughtering
facility, a shipper must: (1) Ensure that each equine has access to
appropriate food and potable water after being offloaded from the
conveyance; (2) present the owner-shipper certificates to a USDA
representative; (3) allow a USDA official 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.
In addition, as discussed above, shippers transporting equines to
slaughtering facilities outside the United States would need to present
the owner-shipper certificates to USDA representatives at the border.
Rationale
Our proposed requirement regarding offloading of the equines is
self-explanatory; most equines being transported to slaughtering
facilities have traveled great distances without access to food and
water and need to be offloaded and provided access to appropriate food
and potable water to maintain their well-being.
We are proposing to require that shippers arriving at a
slaughtering facility present the owner-shipper certificates to a USDA
representative and allow the USDA representative access to the equines
and the animal cargo area of the conveyance so that he or she can
assess the condition of the equines to determine whether any apparent
violations of the regulations in proposed part 88 have occurred. We are
further proposing to prevent a shipper from offloading a shipment of
equines at a slaughtering facility and leaving the premises before a
USDA representative can make the necessary examinations and inspections
of the equines, the conveyance, and the owner-shipper certificates. We
believe that such inspections and examinations would be necessary for
effective enforcement of the proposed regulations. Finally, we are
proposing to require that shippers transporting equines to slaughtering
facilities outside of the United States present the owner-shipper
certificates to USDA representatives at the border so that we can
ensure the well-being of the equines as well as track the numbers of
equines being shipped out of the country for slaughter elsewhere. When
they deem it necessary, USDA representatives at the border would
conduct inspections of conveyances carrying equines destined for
slaughter outside the United States.
Proposed Sec. 88.6--Violations and Penalties
We are proposing to state that the Secretary is authorized to
assess civil penalties of up to $5,000 per violation for noncompliance
with any of the regulations in proposed part 88. We are also proposing
that each equine transported in violation of the regulations would be
considered a separate violation.
Rationale
As stated previously, the statute authorizes the Secretary to
establish and enforce appropriate and effective civil penalties. In
considering appropriate amounts for civil penalties, we reviewed the
legislative history of the statute and also drew on our experience as a
Federal regulatory agency. We especially drew 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 humane treatment of certain animals.
In the statute's origins as a Senate bill, a maximum criminal penalty
was set at $5,000. We believe that civil penalties up to $5,000 per
violation would be appropriate and effective in deterring noncompliance
with the proposed regulations as directed by Congress in the statute.
The proposed 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.
Adjudication of a violation of the regulations would be conducted
pursuant to the Department'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). In the rule portion of this document, we are proposing to
add the statute to the list of statutes in 9 CFR 70.1. The necessary
amendment to 7 CFR 1.131 is being handled through a separate rulemaking
action. The Rules of Practice establish, among other things, the
procedures for filing a complaint and a response, settling a case, and
holding a hearing.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been reviewed under Executive Order 12866.
The rule has been determined to be significant for the purposes of
Executive Order
[[Page 27216]]
12866 and, therefore, has been reviewed by the Office of Management and
Budget.
In accordance with 5 U.S.C. 603, we have performed an Initial
Regulatory Flexibility Analysis for this proposed rule, which 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 proposed regulations, which would
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
proposed regulations would 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. Our
discussion of the anticipated economic impact of this proposed rule on
small entities also serves as our cost-benefit analysis under Executive
Order 12866.
The proposed rule would pertain 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 four slaughtering facilities that accept equines in the
continental United States: Two are located in Texas (Ft. Worth and
Kaufman), and the others are in Nebraska (North Platte) and 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.
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 in this 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 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, as proposed, the regulations would
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 entities would be
affected by the proposed 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 entities (approximately
200), the average number of equines transported annually to slaughter
per affected entity would be 500.
The proposed rule would require that, for a period of not less than
6 consecutive hours 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 the proposed rule. In addition, the owners are more
likely than commercial shippers to have the facilities necessary to
meet the preloading requirements.
This proposed 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 worst, the proposed rule would result in owners having
to keep their equines in a farm or feedlot for an additional 6 hours to
fulfill the proposed 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.
[[Page 27217]]
We cannot estimate the precise dollar impact of this proposed
requirement because no hard data is available on the prevalence of
slaughter equines receiving the proposed requirements for food, water,
and rest prior to loading. However, for the reasons stated above, the
impact should 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.
The proposed rule would 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 would include a statement that the equine has received the
required preloading services. If, as a result of this proposed
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 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 the proposed rule, the owner could ship only 35 equines in a
particular shipment, 3 fewer than the 38 that would have been shipped
had the proposed 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.
The proposed rule would 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. The proposed rule would 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, the proposed
rule would require that stallions and other aggressive equines be
segregated from each other and all other equines on the conveyance.
Available data suggest that the proposed ``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 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.
The proposed rule would 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, would be banned
in 5 years. 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 proposed 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 proposed 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.
The proposed rule would 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 would be fit to travel if it: (1) Can bear
[[Page 27218]]
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 would not need the services of
a veterinarian in order to make the fitness-to-travel determination.
The proposed rule would 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.
The proposed requirement for an owner-shipper certificate would
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 would 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 would be theirs, not the commercial
shippers. The owners would 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 would not incur installation costs.
The added administrative costs that owners would 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
would have to spend about 42 hours per year complying with the proposed
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 would likely be
less than those for owners.
The proposed rule would allow the use of electric prods only in
life-threatening situations and would prohibit the transport of equines
to slaughter on conveyances divided into more than one level, such as
double-deck trailers, 5 years after the final rule's publication date.
The proposed 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 affected entities would be
negatively affected by the reduction in the numbers of equines that
could be transported in a single conveyance. Upon publication of the
final rule, shippers using floating-deck trailers to transport equines
to slaughtering facilities would need to collapse the decks so that
they create only one level. Otherwise, the proposed ban on transporting
slaughter equines in conveyances divided into more than one stacked
level should not impose a burden on the owners of double-deck trailers
because these trailers can be, and are, also used to transport other
commodities, including livestock other than equines 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. If
the proposed ban takes effect, commercial shippers who transport
equines to slaughtering facilities should be able to 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 would have to find another use for the equipment or trade
for single-deck trailers. This situation should not pose a problem.
Owners should be able to sell their serviceable trailers at fair market
value to transporters of commodities other than equines. Furthermore,
many of the double-deck trailers now in the service of owners would
need to be retired in 5 years anyway.
In conclusion, we do not anticipate that any of the proposed
requirements would have undue onerous impacts on any affected entities.
We believe that many transporters of slaughter equines may already be
in compliance with many of the proposed requirements. The proposed
requirement for an owner-shipper certificate would affect all
transporters of slaughter equines, but we have designed the proposed
form to make its preparation as easy as possible. We do not believe
that the completion and maintenance of these certificates would 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 proposed ban on
double-deck trailers should have minimal effect because these trailers
can be used for other purposes and many would need to be replaced prior
to the ban becoming effective anyway.
At a minimum, the proposed rule would require that affected
entities 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 would translate
into added costs of about $300 annually. In a worst-case scenario, the
proposed rule could 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
entities are engaging in little or no voluntary compliance with the
proposed requirements.
Effect on Small Entities
The Regulatory Flexibility Act requires that agencies consider the
economic impact of proposed rules on small entities (i.e., businesses,
organizations, and governmental jurisdictions). As discussed above, the
entities that would be affected by the proposed rule are owners and
commercial shippers who transport equines to slaughtering facilities.
As stated previously, we estimate that approximately 200 entities
would be affected by the proposed rule. Although the sizes of these
entities is 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
[[Page 27219]]
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.
The proposed rule would have a negative economic impact on affected
entities, large and small. As indicated above, operating costs would
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 would 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 proposed rule's provisions, such as stallion
segregation. Because we do not have enough data to conclude that even a
cost increase of as low as $300 annually would not be significant for
most of the potentially affected entities, we welcome public comment on
the potential economic impact of the proposal on small entities.
Alternatives Considered
The Regulatory Flexibility Act, at section 603(c), requires Federal
agencies promulgating new regulations to consider alternatives that
would lessen the impact of the proposed regulations on affected small
entities. In developing the proposed rule, APHIS considered many
alternatives, some of which are discussed below. As mentioned
previously, in developing the proposed program to carry out the
statute, APHIS 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, to get appropriate public input,
APHIS 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.
APHIS had considered requiring that owners and shippers of equines
destined for slaughter secure the services of a veterinarian to certify
the equines' fitness for travel. However, as proposed, owners and
shippers would be allowed to certify the equines' fitness to travel
themselves. In addition, APHIS considered various alternatives with
regard to the types of equines that would be prohibited from shipment.
After much consideration, the agency is proposing to prohibit 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. Agency officials believe
that they 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,
the agency considered many allowable timeframes 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, the agency determined that such a ban
is necessary to ensure the humane transport of equines to slaughtering
facilities. However, the proposed rule would allow the use of double-
deck trailers for a period of 5 years following publication of a final
rule to lessen the impact of the proposed ban on affected entities.
Paragraph (c) of section 603 of 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 proposed 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.
This proposed rule contains information collection and
recordkeeping requirements. These requirements are described in the
section of this document entitled ``Paperwork Reduction Act.''
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 proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. If this proposed rule is adopted: (1) All State
and local laws and regulations that are in conflict with this rule will
be preempted; (2) no retroactive effect will be given to this rule; and
(3) administrative proceedings will not be required 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. 3501 et seq.), the information collection or
recordkeeping requirements included in this proposed rule have been
submitted for approval to the Office of Management and Budget (OMB).
Please send written comments to the Office of Information and
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington,
DC 20503. Please state that your comments refer to Docket No. 98-074-1.
Please send a copy of your comments to: (1) Docket No. 98-074-1,
Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River
Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer,
OCIO, USDA, room 404-W, 14th Street and Independence Avenue SW.,
Washington, DC 20250. A comment to OMB is best assured of having its
full effect if OMB receives it within 30 days of publication of this
proposed rule.
Implementing this proposed rule would require two information
collection activities: The preparation of an owner-shipper certificate
for each equine transported to slaughter and the collection of
information concerning the business of any person found to be
transporting equines to a slaughtering facility. The owner-shipper
certificate would include, among other things, a description of the
equine's physical characteristics and a description of the conveyance;
certification of the equine's fitness to travel; and the date, time,
and place at which the equine was placed on the conveyance for movement
to the slaughtering facility. We believe this information would be
necessary for enforcement of the proposed regulations. The collection
of business information from persons found to be transporting equines
to slaughtering facilities would enable us to determine whether a
particular person is subject to the proposed regulations.
We are asking OMB to approve these information collection
activities in connection with our efforts to ensure that horses being
transported to slaughter are treated humanely.
We are soliciting comments from the public concerning our proposed
information collection and recordkeeping requirements. We need this
outside input to help us:
(1) Evaluate whether the proposed information collection is
necessary for the proper performance of our agency's
[[Page 27220]]
functions, including whether the information will have practical
utility;
(2) Evaluate the accuracy of our estimate of the burden of the
proposed information collection, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission responses).
Estimate of burden: Public reporting burden for this collection of
information is estimated to average 5 minutes per response.
Respondents: Owners and shippers of slaughter horses.
Estimated annual number of respondents: 200.
Estimated annual number of responses per respondent: 500.
Estimated annual number of responses: 100,000.
Estimated total annual burden per respondent: 42 hours.
Copies of this information collection can be obtained from:
Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence
Avenue SW., Washington, DC 20250.
List of Subjects
9 CFR Part 70
Administrative practice and procedure.
9 CFR Part 88
Animal welfare, Horses, Reporting and recordkeeping requirements,
Transportation.
Accordingly, we propose to amend 9 CFR part 70 and to add a new 9
CFR part 88 as follows:
PART 70--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER CERTAIN ACTS
1. The authority citation for part 70 would be 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,
371.2(d).
2. In Sec. 70.1, the list of statutory provisions would be 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 would be 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, 371.2(d).
Sec. 88.1 Definitions.
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. Any individual, partnership, corporation, or cooperative
association that purchases equines for the purpose of sale to a
slaughtering facility.
Owner-shipper certificate. VS Form 10-13, which requires the
information specified by Sec. 88.4(a)(3) of this part.
Secretary. The Secretary of Agriculture.
Shipper. 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.
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 of any
individual or other entity information regarding the business of the
individual or other entity that transported the equines. When such
information is requested, the individual or other entity will 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 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 [date 5 years from the date of publication
of final rule]. 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 shipper or owner must:
[[Page 27221]]
(1) For a period of not less than 6 consecutive hours 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 1 to each equine in the
shipment;
---------------------------------------------------------------------------
\1\ 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.
---------------------------------------------------------------------------
(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:
(i) The shipper's name and address and, if the shipper is not the
owner of the equines, the owner's name and address;
(ii) A description of the conveyance, including the license plate
number;
(iii) A description of the equine's physical characteristics,
including such information as sex, coloring, distinguishing markings,
permanent brands, and electronic means of identification, that could be
used to identify the equine;
(iv) The number of the USDA backtag applied to the equine in
accordance with paragraph (a)(2) of this section;
(v) A statement of fitness to travel, 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;
(vi) 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;
(vii) The date, time, and place the equine was loaded on the
conveyance; and
(viii) 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 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. Veterinary assistance must be provided as soon as possible
for any equines in obvious physical distress; and
(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. If such offloading is required en route to the
slaughtering facility, a 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 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 a veterinary professional to treat an
equine, including performing euthanasia if necessary.
(f) The individual or other entity who signs the owner-shipper
certificate (either the owner or the shipper) 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 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) The shipper must not leave the premises of a slaughtering
facility until the equines have been examined by a USDA representative.
(c) Any 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 will be
considered a separate violation.
(Approved by the Office of Management and Budget under control
number 0579-XXXX.)
Done in Washington, DC, this 13th day of May 1999.
Joan M. Arnoldi,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 99-12577 Filed 5-18-99; 8:45 am]
BILLING CODE 3410-34-P
