Commercial Transportation of Equines to Slaughter

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.

-----------------------------------------------------------------------

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:

[email protected].

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,

[[Page 27212]]

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

[[Page 27213]]

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