Docket No. 98-074-1
Regulatory Analysis and Development
4700 River Road Unit 118
Riverdale, MD 20737-1238.
Re: Docket #: 98-074-1
Title: Commercial Transportation of Equines to Slaughter
Docket Type: PRM
Publication Date: 5/19/99
CFR Part: 9 CFR 70, 88
FR Citation: 64 FR 27210
As we will demonstrate, the proposed regulations are seriously inadequate in
the protection they afford to equines destined for slaughter and plainly
inconsistent with the mandate given by Congress to the USDA in the 1996 Farm
1. Definitions. The accepted practice of federal administrative agencies when
drafting regulations to implement a Congressional statute is to repeat the terms
and definitions found in the authorizing statute, adding elaboration where
appropriate. Rather than follow this conventional approach, USDA rejects
Congress terms and definitions in favor of its own. In the process, USDA has
radically and impermissibly narrowed the broad scope of coverage that Congress
intended when it authorized regulations on the commercial transport of equines
The key operative terms defined in the statute are slaughter facility and
person. Rather than base its proposed regulations on these terms as defined by
Congress, USDA has made up its own operative terms -- slaughtering facility
owner, and shipper -- and defined them in a manner that distorts Congress
intent. The following table compares the terms and definitions in the statute
(left column) with the terms and definitions in the proposed regulations (right
Slaughter facility, including an assembly point, feedlot, or stockyard.
Slaughtering facility. A commercial establishment that slaughters equines for
Person. The term person
(A) means any individual, partnership, corporation, or cooperative
association that regularly engages in the commercial transportation of equine
for slaughter; but
(B) does not include any individual or other entity referred to in
subparagraph (A) that occasionally transports equine for slaughter incidental to
the principal activity of the individual or other entity in production
Owner. Any individual, partnership, corporation, or cooperative association
that purchases equines for the purpose of sale to a slaughtering facility.
Shipper. Any individual, partnership, corporation, or cooperative association
that engages in the commercial transportation of equines to slaughtering
facilities more than once a year, except any individual or other entity that
transports equines to slaughtering facilities incidental to the principal
activity of production agriculture.
In the shift from Congress term slaughter facility to the proposed
regulations term slaughtering facility, the scope of regulatory coverage
shrinks. Under the proposed regulations, only transportation to the actual
establishment that slaughters equines is covered. Transportation to assembly
points, feedlots, and stockyards, included in Congress broader term, is not
covered . As a result, the proposed regulations neglect these important phases
of the process. Similarly, in the course of replacing the statute's single term
person with the two terms in the proposed regulations, owner and shipper,the
proposed regulations manage to exempt from coverage entire classes of (1) horse
owners who do not fit the regulations narrow definition of owner and (2) horse
transporters who do not fit their definition of shipper, even though Congress
meant for them to be covered as persons under the statutes definition. Congress
included in the definition of person any individual or entity that regularly
engages in the transportation of equine 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. But owner as
defined in the regulations includes only an individual or entity that purchases
equines for the purpose of sale to a slaughtering facility.(Emphasis added.) And
in defining the new term shipper, the proposed regulations appear to track the
statute by exempting transportation that is incidental to the principal activity
of production agriculture. However, the proposed regulations drop Congress
requirement that production agriculture be the principal activity of the
individual or entity doing the transporting if an exemption is to apply.
The combined effect of these changes is dramatically illustrated by applying
the proposed regulations to foals of Premarin horses. The proposed regulations
would ban transportation to slaughter of foals under six months of age unless
the exemption applies. Hundreds of farms in the U.S. and Canada keep tens of
thousands of mares pregnant to harvest their urine for use in the manufacture of
Premarin -- short for pregnant mare urine -- a female hormone replacement drug.
Many of the foals born to the pregnant mares as a by-product of this business
are currently transported to slaughter before reaching the age of six months,
either by buyers who purchase the foals at auction or by the horse farmers
themselves. If the proposed regulations applied to those who own and ship these
foals, such transport would be banned. If they are exempt, it could continue.
If the agency had adhered to Congress definitions, Premarin foals would not
be exempted from the regulations ban. Under Congress definition of the term
person, a Premarin farmer who makes several shipments of Premarin foals to
slaughter facilities would not be exempt. While the shipments would be
incidental to the farmer primary activity of production agriculture, they would
not qualify as occasional. Similarly, a trucking company that transported
several shipments of Premarin foals to slaughter would not be exempt under
Congress definition, because the trucking company is not itself engaged in
production agriculture as its primary activity.
But the agency has not used Congress definitions. Under the agency proposed
definitions, a Premarin farmer who ships his own foals to slaughter is not an
owner, because the farmer did not purchase the foals, or any other equines, for
the purpose of sale to a slaughtering facility. The farmer is also not a
shipper, because his transportation of the foals to slaughter is incidental to
the principal activity of production agriculture. Thus, a Premarin farmer
driving his own foals to slaughter is completely exempt from the proposed
regulations. And, if the farmer instead contracts with a commercial trucker to
transport the foals, the result is the same: no one is covered by the
regulations. As explained above, the farmer is not an owner. The trucker is not
an owner, either, nor is the trucker a shipper under the regulations because –
due to the definitional sleight of hand discussed earlier in these comments the
transport is incidental to someone's primary activity of production activity
(the farmer's, even though that is not the trucker's primary activity. The
result: neither the farmer or the trucker is subject to the regulations as
written, and there will be nothing as far as the federal government is concerned
to prevent the transport of these foals under six months of age to slaughter.
This is a loophole big enough to drive many trucks through, and not just
trucks loaded with Premarin foals. The proposed definitions would exempt all
professional horse breeders and the trucking firms that transport their unwanted
foals to slaughter. It is common for the mares owned by a single breeder to bear
dozens, even hundreds of foals per year, only a small percentage of which are
sold into non-slaughter markets (for racing, show, and other purposes). The rest
are often transported to slaughter plants, where they will fetch the breeder
hundreds of dollars apiece. This gaping loophole for unregulated mistreatment of
young foals is not what Congress intended and it must be corrected.
2. Preemptive effect. The proposed rule fails to specif[y] in clear language
the preemptive effect, if any, to be given to the regulation (emphasis added),
as required by Executive Order 12988. Section 88.2(a) of the proposed regulation
provides in general terms that State governments may enact and enforce
regulations that are consistent with or that are more stringent than the
regulations in this part. The Notice of Proposed Rulemaking states, however,
that, if adopted, [a]ll State and local laws and regulations that are in
conflict with this rule will be preempted. 64 Fed. Reg. 27219. This generic
restatement of the principle of federal preemption specifies nothing.
Indeed, the statement concerning preemption in the Notice is difficult to
reconcile with the language in the proposed regulations permitting more
stringent State regulations. To illustrate the problem, the Notice statement on
preemption and the language of the regulation can be applied to the provision in
the proposed regulations that would permit, for five years, continued used of
double-deck trailers to transport equines to slaughter, a practice which several
States currently prohibit. Will these existing State regulations be deemed in
conflict with and therefore preempted by the proposed federal regulation because
they prohibit what the federal regulation allows? Or will the State regulations
continue to be valid because they are more stringent than the proposed federal
regulations? It is clear from the text of the statute and the Conference Report
that Congress had no intention of entirely occupying the field of regulation in
this area to the exclusion of state regulation. Accordingly, the regulations
should specifically state that state regulations prohibiting conduct the federal
regulations would allow are not preempted unless compliance with the state
regulations would make compliance with the federal regulations impossible.
Unless this issue is clarified in the regulation itself, adoption of the
proposed regulations is likely to generate the needless litigation that
Executive Order 12988 sought to avoid by its requirement for specific, clear
language on preemptive effect.
3. Standards for conveyances. Section 88.3 of the proposed regulations would
prohibit use of double-deck trucks to transport equines to slaughter. However,
as noted above, an exception would permit for five years following publication
of the final rule continued use of double-deck trucks that lack the capability
to convert to one level. This exception is squarely inconsistent with the
recognition elsewhere in the regulation of the necessity to provide sufficient
interior height to allow each equine on the conveyance to stand with its head
extended to the fullest normal postural height. It is also squarely inconsistent
with findings from the research mandated by Congress. The agency acknowledges as
much in summarizing the results of the research: [W]e 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.64 Fed. Reg. 27213.
The justification offered for the five-year exception to ease the burden of
this proposed regulation on the affected entities cannot withstand scrutiny.
First, contrary to the characterization of this exception in the Notice as a
grandfather clause,the proposed five-year grace period is not limited to
double-deck trailers that are currently being used to transport equines. As
written, a shipper in the business of transporting horses to slaughter could at
any time during the five-year period begin to use a new double-deck trailer, or
a double-deck trailer previously used to transport non-equine livestock. Second,
the exception appears to be based on the unsupported assumption that immediate
prohibition of the ban on use of double-deck trailers currently being used to
transport horses to slaughter would impose an economic hardship on their owners
by eliminating all economic use. This assumption is false because double-deck
livestock trailers are designed and intended for transporting non-equine
livestock, such as cattle and sheep. Owners can therefore recover their
investments in non-convertible double-deck trailers by shifting their use to
transport of non-equine livestock, or by selling or leasing the trailers to
others for such use. Again, the agency acknowledges as much in the Notice, as
[T]he 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 vale to transporters of commodities other than equines. 64 Fed. Reg.
4. Requirements for transport. Several rules in his segment of the proposed
regulations are inconsistent with the findings of the USDA-commissioned research
on which Congress intended the regulations to be based. First, the proposed
regulations would not, [f]or practical reasons, regulate the care of equines
destined for slaughter prior to loading on the conveyance for shipment to the
slaughtering facility, even though they would require owners to certify in
writing that their horses are fit for travel. 64 Fed. Reg. 27211. Oddly, the
agency justifies this decision by arguing 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. This, of course,
begs the question: if there is a pattern of equines unfit for travel due to
pre-existing injuries or infirmities nevertheless being transported for
slaughter, research on injuries caused to equines in transit will not reveal it.
And, according to other research commissioned by the USDA specifically for the
development of these regulations, research the agency disregards on this point,
there is a very real pattern of such pre-existing injuries and infirmities.
The results of one of the studies commissioned by USDA/APHIS for this
rulemaking are reported in an article entitled Survey of Trucking Practices and
Injury to Slaughter Horses. The article is co-authored by Temple Grandin, Kasie
McGee and Jennifer Lanier of the Department of Animal Sciences at Colorado State
University in Fort Collins, Colorado. The authors observed 63 trailer loads
carrying a total of 1008 horses arriving at two slaughter plants in Texas in
July and August of 1998. Among their conclusions are the following:
The greatest welfare problems observed in this survey were caused by either
neglect or abuse at the point of origin. Six percent of the horses surveyed had
serious welfare problems that occurred at the point of origin and 1.8% had
severe welfare problems caused by injuries which occurred during marketing or
. . .
Transport and market damage includes, but is not limited to abrasions on
withers, back and croup scrapes, lacerations and abrasions on the head, fresh
cuts, bite marks, and eye injuries.
Owner problems include, but are not limited to emaciated, severe founder,
broken legs, bowed tendons, extensive infections, foot bent over, deformities,
and tumors all over the body.
. . .
Approximately 73% of the severe welfare problems observed at the slaughter
plants did not occur during transport or marketing. Some examples of severe
welfare problems which were caused by the owner were severely foundered feet,
emaciated, skinny, weak horses, animals which had become non-ambulatory and
injuries to the legs such as bowed tendons. Four horses were loaded with broken
legs. One of these horses was a bucking bronc that had broken its leg during a
rodeo. It died shortly after arrival at a plant.
See also Grandin T, McGee K, Lanier JL,Prevalence of severe welfare problems
in horses that arrive at slaughter plants,J. Am. Vet. Med. Assoc. 1999 May 15;
214(10):1531-3. The Notice makes no mention of these findings, which cannot be
reconcile with the agency's decision not to regulate pre-loading care of
slaughter horses, its decision to trust owners to truthfully certify that horses
loaded onto trucks for slaughter are fit to travel, and its decision not to
require pre-transport inspection of slaughter horses by a veterinarian.
The second point on which the proposed requirements for transportare
inconsistent with the findings of USDA/APHIS commissioned research -- and with
well-established equine industry standards is the maximum time an equine can
humanely endure without water, food, and rest. The proposed regulations would
permit equines to be kept on trucks for up to 28 hours without water, food, or
rest. The Notice asserts that research has shown that equines that have been
provided [water, food, and opportunity to rest for at least 6 hours prior to
being loaded] can be transported for at least 28 hours with no adverse health
effects. In fact, however, one of the studies commissioned by USDA/APHIS for
these regulations concluded that [t]rips longer than 27 hours showed
significantly greater changes over shorter durations in % weight loss, WBC,
total protein, and lactate& all considered to be reliable stress indices.
The study involved nine loads totaling 306 mature horses transported under hot
and humid conditions from 370 to 1550 miles in trips lasting from 5 3/4 to 30
hours. The author, a professor of veterinary medicine at the University of
California, Davis, also found that [i]n all loads, injuries increased with
duration over 27 hours . . . .Carolyn L. Stull, Ph.D., Stress and Injuries in
Horses Commercially Transported to Slaughter in the U.S.,emphasis added. It is
also noteworthy that the same researcher, when not being funded specifically to
study slaughter horses, recently concluded that [t]ransportation in hot, humid
conditions should attempt to minimize thermal stress by carefully selecting
departure/arrival time schedules to avoid the hottest portion of the day,
frequently offering (every 4-6 hours) water to the horses, and limiting the
duration of the trip. Carolyn L. Stull, Ph.D., Physiology, Balance, and
Management of Horses During Transportation, Proceedings of the Horse Breeders
and Owners Conference, Red Deer, Alberta, Canada, Jan. 10-12, 1997, emphasis
The other researcher funded by USDA/APHIS, Ted Friend of the Department of
Animal Science, College of Agriculture and Life Sciences, Texas A&M
University, concluded that tame horses in good condition and initially deprived
of access of water for approximately 6 hours can be transported for up to 24
hours before dehydration and fatigue become severe. It should be noted, however,
that the study was terminated after 24 hours of transport because 3 of the 30
horses were deemed unable to continue. Friend TH, et al., Stress response of
horses during a long period of transport in a commercial truck J. Am. Vet. Med.
Assoc. 1998 Mar. 15;212(6):838-44. And the same researcher, when interviewed
about his research, stated flatly:If you have to haul horses more than 24 hours,
then the truck must be equipped with a watering device. Herbert KS, Searching
For A Good Ride: Research on transporting horses to slaughter,The Horse: Your
Guide to Equine Health Care 1997 Oct.;14(10):66-68. The proposed regulations
contain no requirement for such watering devices.
Neither study directly supports the 28-hour limit on which the agency
settled. Perhaps it is merely coincidence, but 28 hours is also the limit
Congress placed on rail transport of all livestock, including cattle, sheep, and
swine, 93 years ago, without the benefit of modern scientific research. See
Stat. 607, ch. 3594, Sec. 104 (June 29, 1906), amended and re-enacted by Pub. L.
103-272, Sec. 1(e), July 5, 1994, 108 Stat. 1356 and codified at 49 U.S.C. sec.
Other recent research has also shown serious adverse health effects from
travel for periods well under 28 hours. See, e.g., Oikawa M, et al., Pathology
of equine respiratory disease occurring in association with transport,J. Comp.
Pathol. 1995 Jul;113(1):29-43, which reports that three of eight young
thoroughbreds showed clinical respiratory abnormalities after 20 hours of
transportation by truck. In July of 1999, a group of eight
internationally-renowned veterinarians and researchers who had advised on care
of horses competing in the hot and humid conditions of the 1996 Atlanta Summer
Olympics announced that they will within months release a set of guidelines on
horse transport, to be published in book form by the American Horse Shows
Association. In a recent roundtable discussion published in the July, 1999 issue
of The Horse: Your Guide to Equine Health Care, the eight gave their views on,
among other things, the adverse effects of extended travel on equine respiratory
health, and how frequently horses need access to water during transport.
Excerpts follow (emphasis added):
It is very clear that transportation is associated with the onset of
respiratory disease in some horses. In an epidemiological investigation
conducted by the University of Illinois, transportation for greater than 500
miles was the greatest risk factor for development of pleuropneumonia.
Investigators in Japan have also shown that transportation for more than 20
hours is associated with the onset of fever and pneumonia. [N. Edward Robinson,
BVETMED, PhD, MRCVS, Docteur Honoris Causa (Liege), Matilda R. Wilson Professor
of Large Animal Clinical Sciences, Michigan State University College of
Veterinary Medicine.] . . .
Transit-associated respiratory disease is a major problem in transporting
horses. The mean incidence of the disease in racehorses belonging to the Japan
Racing Association that were shipped below 1,000 km between 1993 and 1997 was
1.2%. Otherwise, in cases involving prolonged transport by road of over 1,000 km
between 1989 and 1994, the incidence was 11.9%. These differences of values
suggest an increased incidence of disease with increased transport distance
and/or traveling time. [Masa-aki Oikawa, DVM, PhD, Vice-Director, Equine
Research Institute, Japan Racing Association.]
. . .
Water the horses every six to eight hours, and water intake should be
monitored. . . . I have yet to see fluid or electrolyte deficits in transported
horses unless they have become ill, provided they have been offered food and
water every six to eight hours. I've seen no evidence of dehydration. [Desmond
Leadon, MA, MVB, Msc, FRCVS, RCVS, head clinician, Pathology Unit, Irish Equine
. . .
Taking steps to ensure that the horse maintains hydration is also important.
Fluid loss can be substantial (up to 0.5% of body weight per hour). So, over a
12-hour period, the average-sized horse may lose 20kg or more as sweat and other
insensible fluid losses. Horses need access to water on a regular basis during
transport (at least every four to six hours). [Ray Geor, DVM, President,
Association of Equine Sports Medicine.]
No final rulemaking should be conducted until the glaring discrepancies
between the agency's proposals and its own research findings have been addressed
and serious consideration has been given to the forthcoming international
guidelines on horse transport.
Prepared for the California Equine Council by
Law Offices of Lowell Finley
1604 Solano Avenue
Berkeley, CA 94707-2109
"Keep America's horses in the stable and off the table!"
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