![](media/image1.png){width="4.0625in" height="1.2604166666666667in"}

September 29, 2008

Docket Clerk

U.S. Department of Agriculture

Food Safety and Inspection Service

Room 2534

South Agriculture Building

1400 Independence Avenue, SW

Washington, DC 20250

*Submitted electronically at www.regulations.gov*

**Re:** **Requirements for the Disposition of Cattle That Become
Non-Ambulatory Disabled Following Ante-Mortem Inspection; Proposed
Rule**

**Docket Number: FSIS--2008--0022**

**Introduction**

The Humane Society of the United States (HSUS), the nation's largest
animal protection organization, supported by 10.5 million constituents,
welcomes the opportunity to submit comments to USDA's Food Safety and
Inspection Service (FSIS) on its proposed rule regarding Requirements
for the Disposition of Cattle That Become Non-Ambulatory Disabled
Following Ante-Mortem Inspection, 73 Fed. Reg. 50889 (August 29, 2008)
("Proposed Rule").

In the following comments, HSUS addresses a number of positive aspects
of the Proposed Rule, as well as identifies immediate actions that are
warranted both to improve the welfare of animals and to reduce risks to
human health.

**I.** **Summary of Comments**

The Proposed Rule is long overdue and, in the interests of animal
welfare and food safety, should be finalized immediately:

-   The Proposed Rule is necessary under the Federal Meat Inspection Act
    (FMIA) because of the food safety risks of allowing any downed
    cattle to be slaughtered (including bovine spongiform encephalopathy
    (BSE), *E. coli*, and *Salmonella*).

-   The Proposed Rule is also necessary under the Humane Methods of
    Slaughter Act (HMSA), which requires that all livestock be treated
    humanely in connection with slaughter.

-   The Proposed Rule, including a requirement that the establishment
    notify FSIS inspectors when cattle become non-ambulatory after
    antemortem inspection, is urgently needed so that establishments are
    no longer incentivized to use any means necessary to get sick and
    injured cattle to slaughter.

Additional actions the agency should take immediately in conjunction
with finalizing the Proposed Rule include:

-   Issuing an emergency rule, effective immediately, to apply the ban
    on non-ambulatory cattle to auctions, markets, stockyards, and
    transport vehicles, and require immediate humane euthanasia of all
    non-ambulatory cattle when they arrive at a facility (including a
    slaughter facility) in that condition or when they become
    non-ambulatory at the facility, or, in the alternative, issuing a
    proposed rule that would apply the downer ban to non-ambulatory
    cattle at these facilities and require their immediate humane
    euthanasia, and soliciting comments on these reforms.

-   Issuing proposed rules addressing other welfare problems for sick
    and injured animals, including:

    -   Prohibiting egregious practices inflicted upon any animal not
        standing or with a broken limb, such as forcefully striking the
        animal with an object, dragging the animal, ramming or otherwise
        attempting to get the animal to stand using heavy machinery, or
        using electric shock, water pressure, or other extreme methods.

    -   Requiring that all non-ambulatory animals---not just cattle---be
        condemned and humanely euthanized.

-   Substantially reworking the agency's oversight and inspection
    systems to ensure humane treatment of live animals at slaughter
    facilities.

**II. Background**

The Prohibition on the Use of Specified Risk Materials for Human Food
and Requirements for the Disposition of Non-Ambulatory Disabled Cattle,
69 Fed. Reg. 1,862, 1,870 (Jan. 12, 2004) ("2004 Interim Rule")
instructed USDA veterinary inspectors to condemn any cattle at slaughter
plants deemed "nonambulatory disabled," defined as any cattle who
"cannot rise from a recumbent position or...cannot walk, including, but
not limited to, those with broken appendages, severed tendons or
ligaments, nerve paralysis, fractured vertebral column, or metabolic
conditions."[^1] Since BSE can result in an animal going down either
directly, because of brain damage, or indirectly, by predisposing an
animal to injury, these downed cattle were to be condemned rather than
slaughtered for human consumption.

The same day that the regulations were published, however, USDA issued
Notice 5-04, instructing inspecting veterinarians how to carry out the
regulations. FSIS Notice 5-04, Interim guidance for non-ambulatory
disabled cattle and age determination (January 12, 2004). In contrast to
both the public claims by USDA and the Interim Rule itself, the agency
instructed inspectors to allow downed cattle to be slaughtered for human
consumption if they initially appeared otherwise healthy but went down
within the slaughter plant itself due to an acute injury (e.g., if the
animal falls and breaks a leg). *Id*. This was quite imprudent since
underlying disease in general, and BSE in particular, may make an animal
disoriented, weak, or uncoordinated and thereby predispose an animal to
an injury sustained in a fall.

Linda Detwiler, former senior staff veterinarian in charge of USDA's BSE
surveillance program, strongly opposed any attempt to weaken the
definition of "downer" to exclude those downed presumably solely from
injury in written comments submitted to USDA. "I urge the USDA to not
alter this definition," she wrote, "and to continue to prohibit for
human food any bovine which cannot walk to the 'knock box' \[slaughter
area\] regardless of reason."[^2]

Because illness may predispose an animal to injury, Dr. Detwiler argued
that the underlying cause of the non-ambulatory condition may be
impossible to ascertain. In other words, a broken leg might just be a
symptom of a more serious problem, such as BSE. At least three of the
documented cases of BSE in North America were identified as downers due
to injury, not illness,[^3]^,^[^4]^,^[^5] underscoring how difficult it
is for inspectors to reliably determine which non-ambulatory animals may
be "safe."

The first case of BSE discovered in Canada was thought to be "suffering
from a broken leg."[^6] The first case of BSE discovered in the United
States similarly did not seem to display any BSE symptoms---the cow was
reported down due to a birthing injury that reportedly interfered with
her ability to walk.[^7] She was seemingly picked at random as one of
perhaps less than 1% of the downed cows tested for mad cow disease in
the United States at that time.[^8] Similarly, a third North American
case was suspected of injury rather than disease. The farmer reportedly
"didn't suspect anything was seriously wrong when one of his cows
slipped on the ice and hurt itself...."[^9]

Furthermore, it is difficult to examine cattle in recumbency.[^10] A
2003 review asserts that clinical examinations "should always be
thorough" and that "a precise 'cow-side' diagnosis can, on occasions, be
very difficult." The review concludes: "It should always be considered
that two or more conditions may present simultaneously in a downer
cow...."[^11] Bovine veterinarian Jim Reynolds of the University of
California's School of Veterinary Medicine reportedly agrees: "It is
very, very difficult for a veterinarian to differentiate the many
reasons a cow may be non-ambulatory."[^12]

In 2006, the USDA Office of the Inspector General (OIG) criticized the
agency for its inconsistent application of policies and regulations
related to downed animals after observing non-ambulatory cattle
processed at two slaughter plants. In a review of 12 slaughter plants
observed over the period June 17, 2004, to April 12, 2005, the OIG found
that 29 downed cattle were slaughtered for human food. They "observed
use of a forklift and a rail above the pens to transport non-ambulatory
cattle to the slaughter area." The audit noted the lack of documentation
on the animals' fitness for human consumption.[^13]

In July 2007, USDA finally made permanent its so-called "ban" on
slaughtering downer cattle. But instead of closing the loophole
identified by the OIG, the agency codified it, acknowledging that some
downer cattle have been, and will continue to be, processed for human
food. USDA's 2007 Final Rule specifies that "FSIS inspection personnel
will determine the disposition of cattle that become non-ambulatory
after they have passed ante-mortem inspection on a case-by-case basis."
Prohibition of the Use of Specified Risk Materials for Human Food and
Requirements for the Disposition of Non-Ambulatory Disabled Cattle;
Prohibition of the Use of Certain Stunning Devices Used To Immobilize
Cattle During Slaughter, 72 Fed. Reg. 38700 (July 13, 2007) ("2007 Final
Rule"). In other words, cattle who are able to stand or walk when
initially inspected by USDA but then keel over and cannot stand up again
can nevertheless be slaughtered, and the meat can be sold, although it
is unlikely cattle would keel over this way absent mishandling unless
there is underlying illness.

**III. The Proposed Rule**

> **A. The Proposed Rule should be finalized immediately.**

As USDA had previously had a total ban on the slaughter of downed cattle
in place publicly from 2004 to 2007---which was issued within three
weeks after the first diagnosis of bovine spongiform encephalopathy
(BSE, or mad cow disease) in the United States, and took effect
immediately---the agency has all the research and comments necessary to
act immediately to restore the complete prohibition on slaughtering
cattle too sick or injured to stand and walk. 2004 Interim Rule at 1870.
Of approximately 22,000 public comments that USDA received on the
Interim Rule's policy (including those from industry), more than 99%
urged USDA to maintain and strengthen the downer ban, expanding it to
cover other species and making the prohibition permanent.[^14]
Circumstances have not changed in any way that could possibly undermine
the eminent wisdom of immediately reinstating the more complete ban of
2004 to 2007. On the contrary, as discussed fully below, recent events
and well established science all counsel for reinstating that ban
without any delay.

USDA has the authority to make a complete ban on the slaughter of downed
cattle effective immediately under the Administrative Procedure Act. 5
U.S.C. § 553. Not only was such authority exercised in the 2004 Interim
Rule on downed cattle, it was also exercised in 2006 when the agency
issued an interim final rule to continue operations at horse slaughter
plants after Congress defunded inspections at such plants in the FY 2006
Agricultural Appropriations Act. Ante-Mortem Inspection of Horses, 71
Fed. Reg. 6337 (February 8, 2006). In that case, USDA claimed that
potential economic damage to horse slaughter plants justified the
decision to dispense with the notice and comment period and issue
regulations immediately. *Id*. at 6340. If the purely financial threat
to just two horse slaughter operations merits dispensing with notice and
comment, there can be no rational explanation for not having the
Proposed Rule to close the downer loophole take effect immediately as
well. As the Hallmark/Chino slaughter plant investigation and subsequent
massive beef recall and resultant damage to consumer confidence as well
as international trade relations makes abundantly clear, the economic
harm alone of the current downer loophole clearly justifies having the
regulations take effect immediately.

The threat to the domestic and international beef trade is rooted in the
far more serious threat to public health posed by allowing downed cattle
into the foodsupply. In 2004, when USDA first adopted the ban on the
slaughter of downed cattle, it explained that downed cattle are far more
likely to be infected with BSE than cattle who are able to stand and
walk. 2004 Interim Rule at 1870. Given studies suggesting that
non-ambulatory cattle may have a prevalence of BSE more than 100 times
that of ambulatory animals,[^15] tissues from all so-called "fallen
stock" in Europe cannot even be used in animal feed.[^16]

Such prominent industry organizations as the American Meat Institute,
National Meat Association, and National Milk Producers Federation all
called months ago (in April 2008) for a total ban on processing any
downer cattle and petitioned USDA to close this downer loophole. In
1995, Temple Grandin, Ph.D., advisor to the American Meat Institute and
others in the meat industry, cautioned that "\[o\]ne emaciated, downed,
suffering cow shown on television can cause more losses to the industry"
than all other costs associated with carcass condemnation.[^17]

> **B. The Proposed Rule is necessary under the Federal Meat Inspection
> Act (FMIA) because of the food safety risks (including BSE, *E. coli*,
> and *Salmonella*) of allowing any downed cattle to be slaughtered.**

Every year in the United States, estimates range from 195,000[^18] to
more than 1 million[^19] cattle who collapse for a variety of metabolic,
infectious, toxic, and/or musculoskeletal reasons and are too sick or
injured to rise.[^20] Extrapolating from the proportion of
non-ambulatory cattle found in European[^21] and U.S.[^22] surveys, the
number of non-ambulatory cattle in the United States may be on the order
of 500,000 a year. A governmental survey of dairy producers across 21
states reportedly found that 78.2% of dairy operations had
non-ambulatory cows during 2004.[^23] Though these animals may not have
been fit enough to stand, a limited investigation of USDA slaughter
plant records between January 1999 and June 2001 showed that most were
still ruled fit for human consumption.[^24]

Aside from the serious welfare implications of mistreatment of downed
animals, the practice of slaughtering them for the human food supply
raises significant food safety concerns. Studies have shown that
non-ambulatory cattle suffer from higher rates of foodborne pathogens
such as *E. coli*, *Salmonella*, and BSE.[^25]

BSE is a transmissible spongiform encephalopathy (TSE) of cattle that
may manifest with behavioral symptoms, earning the disease its
colloquial name "mad cow disease." The rendering of sheep infected with
an ovine spongiform encephalopathy (known as scrapie) into cattle feed
may have led to the emergence of BSE.[^26] In animal agriculture,
protein concentrates, or "meat and bone meal"---terms that encompass
"trimmings that originate on the killing floor, inedible parts and
organs, cleaned entrails, fetuses"[^27]---are fed to naturally
herbivorous dairy cows, for example, to improve milk production.[^28]
According to the World Health Organization, nearly 10 million metric
tons of slaughter plant waste is fed to farm animals every year.[^29]

Based on clear findings in Europe[^30] as well as the speculative
evidence of a rare form of mad cow disease striking downed cows for
decades in the United States,[^31] non-ambulatory cattle should be
considered to be a particularly high-risk population. According to the
U.S. Food and Drug Administration (FDA): "Experience has shown that
non-ambulatory disabled cattle...are the population at greatest risk for
harboring BSE."[^32] The FDA cites Swiss data showing a 49-58 times
higher chance of finding BSE in downed cattle than in cattle reported to
veterinary authorities as BSE-suspect under passive surveillance.[^33]
Indeed, at least 14 of the 18 BSE-infected cattle discovered in North
America by August 15, 2008, have reportedly been
non-ambulatory.[^34]^,^[^35]^,^[^36]^,^[^37]^,^[^38]^,^[^39]^,^[^40]^,^[^41]^,^[^42]^,^[^43]^,^[^44]^,^[^45]^,^[^46]^,^[^47]

Though the riskiest tissues---the brains, eyes, and spinal cords---of
most cattle are required to be excluded from most food items in the
United States,[^48] there may be contamination of muscle meat via
aerosolization of the spinal cord during carcass splitting.[^49]
Significant amounts of central nervous system debris found accumulating
in the splitting saws used to halve the carcasses may have the potential
to then transfer contagion from one carcass to the next.[^50] Although
technically, processors are instructed to knife-trim "material grossly
identifiable as brain material, spinal cord, or fluid from punctured
eyes,"[^51] researchers have reported finding nervous tissue
contaminating muscle in commercial slaughter plants.[^52] Contamination
of meat derived from cattle cheeks with brain tissue can also occur if
the cheek meat is not removed before the skull is fragmented or
split.[^53]

Captive bolt stunning, the predominant method used to render cattle
insensible before exsanguination,[^54] may blow a shower of embolic
brain tissue into the animals' bloodstream. In one experiment, a
biological marker applied onto a stunner bolt was later detected within
the muscle meat of the stunned animal. The researchers concluded:

> This study demonstrates that material present in\...the CNS \[central
> nervous system\] of cattle during commercial captive bolt stunning may
> become widely dispersed across the many animate and inanimate elements
> of the slaughter-dressing environment and within derived carcasses
> including meat entering the human food chain.[^55]

Captive bolt stunning may also lead to ejection of brain tissue into the
abattoir from the hole made by the captive bolt onto slaughter plant
equipment, as well as the hands and aprons of workers removing the
animals' heads.[^56] A study published in 2004 in the *Journal of Food
Protection* determined that "this method of slaughter of an animal
infected with bovine spongiform encephalopathy would be likely to
contaminate edible parts of the carcass with infective material."[^57]
Texas A&M University researchers found brain fragments in the
bloodstream of cattle stunned for slaughter as large as 14 cm (5.5 in).
The researchers concluded that it was likely that BSE pathogens could
potentially be "found throughout the bodies of animals stunned for
slaughter."[^58]

Despite the potential for CNS contamination and the fact that peripheral
nerves[^59] and blood[^60] found in all muscles may carry infection,
USDA[^61] and the National Cattlemen's Beef Association[^62] have
attempted to assure consumers that beef is safe to eat, arguing that the
infectious agent is not found in muscle meat. However, Stanley Prusiner,
the director of the Institute for Neurodegenerative Diseases at the
University of California, San Francisco, and winner of the Nobel Prize
in Medicine for his discovery of prions, the cause of BSE and other
TSEs, showed that muscle cells themselves were capable of producing the
potentially infectious agent.[^63] "I found prions in the hind limb
muscles of mice," Dr. Prusiner stated, "at a level approximately
100,000-fold higher than that found in blood."[^64] Dr. Prusiner
reportedly described the studies relied upon by the Cattlemen's
Association as "extraordinarily inadequate,"[^65] and follow-up studies
in Germany confirmed his findings, showing that animals who are orally
infected may indeed end up with prion contamination throughout the
muscles of their bodies.[^66]

Although few cattle have tested positive for BSE in the United States
thus far, the neurodegenerative disease that contaminated beef can cause
in consumers is likely invariably fatal. Because cooking temperatures do
not adequately destroy prions, the onus of responsibility must rest with
the beef industry or, if unable or unwilling to police itself, the
federal government, to ensure infected cattle are not slaughtered for
human consumption. There is evidence that the infectious proteins that
cause BSE can survive incineration[^67] at temperatures hot enough to
melt lead.[^68] In response to a question from Cornell University's Food
Science Department asking what food preparation methods could eliminate
the risk of contracting BSE, then National Institutes of Health
Laboratory of Central Nervous System Studies chief Joseph Gibbs remarked
tongue-in-cheek that one of the only ways to ensure a BSE-free burger
would be to marinate it in a concentrated alkali such as Drain-O™.[^69]

Even USDA itself, in its 2004 Interim Rule, alluded to this concern as
an additional reason to end the use for human food of any downed cattle,
not just some of their body parts, noting that "\[u\]nder the current
testing methods, which are conducted on sections of the brain or spinal
cord, certain tissues of cattle infected with BSE...may contain BSE
infectivity even though the diagnostic test does not show that the
animal has the disease." 2004 Interim Rule at 1870.

BSE is not the only food safety risk posed by slaughtering downed cattle
for human consumption. Texas A&M University researchers were among the
first to alert the medical community of the potential for non-ambulatory
cattle to present a vehicle to contaminate the human food supply with
bacterial pathogens. They studied 30 downed cattle who had no outward
signs of illness, except for inability to rise, and had all passed
antemortem inspection. Even though these non-ambulatory animals appeared
otherwise healthy, when the researchers took bacterial cultures, they
found cows infected with *Salmonella* and *E. coli*. The researchers
concluded: "Results of this study of 30 cattle indicate that pathogens
may be circulating in the blood of some recumbent cattle at the time of
slaughter."[^70] Commenting on areas of concern, the scientists noted:

> It should be remembered that much of the meat from recumbent cattle
> goes into the production of ground beef, which, because of the
> grinding process and extra time it spends at a temperature higher than
> the whole carcasses, usually attains a high bacterial cell count per
> gram by the time processing is finished. Contaminated meat used to
> make ground beef would also contaminate subsequent clean meat exposed
> to common machinery (eg, grinders) and, thus, would increase the
> danger of contamination.[^71]

The majority of non-ambulatory cattle are dairy cows.[^72] Virtually all
dairy cows are ultimately slaughtered for human consumption in the
United States.[^73] Annually, 6 million culled dairy cows enter the food
chain as ground beef,[^74] accounting for at least 17% of the ground
beef produced in the United States.[^75]

According to a 2003 review, downed dairy cows "may harbor greater
numbers of pathogens, and their slaughter may increase spread of
pathogens at the slaughter establishment."[^76] In industry trade
magazine *Meat & Poultry*, research is cited to explain why
non-ambulatory cattle tend to have higher levels of bacteria on their
carcasses: "Lame animals spend more time lying down, which increases the
likelihood they will be contaminated with fecal matter."[^77] In
addition to the potential for contamination of the meat with fecal
pathogens, when dairy cows are slaughtered, "\[k\]nives, carcasses and
the hands of personnel may be contaminated by contents of the mammary
gland when this is removed from the cow during processing."[^78]
Intramammary infections (mastitis) affect up to nearly two-thirds of
cows in the U.S. dairy herd[^79] and are one of the most common reasons
dairy cows are sent to slaughter.[^80] Inappropriate excision of the
udder during the slaughter process can contaminate the rest of the
carcass with milk that could contain *Listeria* and other milk-borne
pathogens. A 1997 review of the microbiological hazards of eating meat
from culled dairy cows concluded: "In the USA, dairy cattle are raised
and managed with increasing intensification, and this intensification
may promote the maintenance of a variety of micro-organisms which could
be pathogenic to humans through food."[^81]

In 2003, a USDA-funded study was published that investigated the
"potential impact to human health that may occur following consumption
of meat derived from downer dairy cattle," by measuring infection rates
of one of the most virulent foodborne pathogens, *E. coli* O157:H7. The
investigators found that downed cows were 3.3 times more likely to
harbor the potentially deadly *E. coli* strain than walking culled dairy
cows. The researchers concluded that "downer dairy cattle harboring *E.
coli* O157:H7 at slaughter may be an important source of contamination
and may contribute to the health risk associated with ground beef."[^82]
The results of this study led USDA Microbial Food Safety Research Unit
Research Leader John B. Luchansky to question whether, based on *E.
coli* alone, non-ambulatory cattle should be excluded from the U.S. meat
supply.[^83]

*E. coli* O157:H7 infects tens of thousands of Americans every year,
causes dozens of deaths,[^84] and may be the leading cause of acute
kidney failure in previously healthy U.S. children.[^85] Speculatively
blamed in part on the increasing intensification of the dairy
industry,[^86] prevalence rates in U.S. dairy herds have ranged up to
100%.[^87] Quoting USDA researcher Caitriona Byrne and colleagues: "Due
to the ubiquity of *E. coli* O157:H7 among cattle, as well as its low
infective dose and the severity of the resistant illness in humans,
effective control of the pathogen may be possible only by eliminating
this microorganism at its source rather than by relying on proper food
handling and cooking thereafter."[^88]

A 2005 review in the *Journal of Dairy Science* likewise concentrated on
the risk of contracting virulent strains of *E. coli* from eating ground
beef from slaughtered dairy cows that may be tainted with fecal
material. These toxin-producing strains can cause hemorrhagic colitis
and progress to kidney failure, coma, and death, particularly in young
children.[^89] Dairy cattle "enter the food chain as ground beef," the
review reports, and "\[a\]s a result, downer dairy cows harboring STEC
\[Shiga toxin-producing *E. coli*\] at slaughter can be a health risk to
humans."[^90]

According to Robert Tauxe, Chief of the Foodborne and Diarrheal Diseases
Branch of the Centers for Disease Control and Prevention (CDC), one
hamburger may reportedly be made from the flesh of hundreds or even
thousands of different cows.[^91] One mathematical model suggests that a
single downed cow infected with a pathogen such as *E. coli* O157:H7
could theoretically contaminate more than 100,000 hamburgers with an
infectious dose.[^92]

*Salmonella* infection hospitalizes thousands of Americans every year,
kills hundreds, and can lead to chronic conditions such as arthritis,
bone infections, cardiac inflammation, and neurological disorders.[^93]
According to the CDC, *Salmonella* strains in the United States are
growing resistant to nine different antibiotics.[^94] One strain, known
as *Salmonella* Newport MDR-AmpC, is even growing resistant to
ceftriaxone, a powerful antibiotic vital for combating serious
infections in children.[^95]

Multiple outbreaks of this new multidrug-resistant *Salmonella* strain
have been tied to dairy farms,[^96] ground beef made from slaughtered
dairy cows,[^97] and dairy products.[^98] Investigating one deadly
outbreak of antibiotic-resistant *Salmonella* involving hundreds of
people, California public health officials traced the cases back to meat
from infected dairy cows slaughtered for hamburger. In their report
published in the *New England Journal of Medicine*, the researchers
correlated risk of contamination with the slaughter plants that received
the most moribund and dead cattle. The researchers noted: "Stressed
animals are more likely to shed *Salmonella* in large numbers."[^99]

In addition to the immunosuppressive effect of stress, non-ambulatory
animals may also be more likely to shed pathogenic bacteria "\[s\]ince
animals going to slaughter are generally in a temporary state of
starvation, and it is known that starvation causes *E. coli* and
*Salmonella* to proliferate" due to changes that occur in the animal's
rumen. By the time most cattle are slaughtered, they have been starved
for variable periods of time, in part because empty rumen are easier to
eviscerate.[^100] This may be particularly relevant to downed cattle
populations who may be left to starve for extended periods before they
are finally slaughtered.

Carolyn Stull of the University of California-Davis School of Veterinary
Medicine has studied *Salmonella* infection in downed cows and reported
results at a 2004 American Meat Institute conference. Fifty downed cows
were sampled and seven were found to be infected with *Salmonella*.
Despite infection, however, five of the seven infected cows, including
at least one cow who was septicemic, were known to have passed USDA
antemortem inspection for human consumption.[^101] Dr. Stull and her
colleagues reportedly identified 6 out of 20 non-ambulatory cattle sent
to a slaughter facility to be fecal shedders of *Salmonella*.[^102]

Anthrax is a farm animal disease that can infect, though very rarely,
the human meat supply.[^103] In 2000, 32 farms were quarantined for
anthrax in the United States.[^104] That summer, at least five people
were exposed to meat "highly contaminated" with anthrax when a family
ate meat from its own downed steer. These cases were reported by the CDC
as ![](media/image4.png){width="1.0416666666666666e-2in"
height="0.10416666666666667in"}"Human Ingestion of *Bacillus
Anthracis*-Contaminated Meat."[^105] Had a ban on the slaughter of
downed cattle been in effect, these people may have been spared. Based
on these cases, the CDC recommended veterinarians consider anthrax as a
possible diagnosis in cattle unable to rise. Subsequently, a family
stricken with gastrointestinal, oropharyngeal, and meningeal anthrax
tied to the consumption of a sick sheep was reported,[^106] one example
of how the health risks associated with non-ambulatory animals are not
limited to cattle.

> **C. The Proposed Rule is also necessary under the Humane Methods of
> Slaughter Act (HMSA), which requires that sick and injured animals be
> treated humanely. The HSUS investigation at the Hallmark/Westland Meat
> Packing Company demonstrates that establishments will treat downed
> animals inhumanely in order to exploit any loophole in the downer
> ban.**

As discussed above, investigations by HSUS[^107] and
others[^108]^,^[^109]^,^[^110] have documented that "downed" cattle are
routinely beaten, dragged with chains, shocked with electric prods,
pushed by forklifts, and forced to endure other abuses in efforts to
move them at slaughter facilities, compounding the pain these animals
already suffer as a result of the injury or illness causing their
immobility.

Citing "egregious violations of humane handling regulations" documented
during HSUS' investigation, FSIS suspended inspection of the
Hallmark/Westland Meat Packing Company, and the Agricultural Marketing
Service (AMS) temporarily suspended the slaughter plant's vendor status,
making it ineligible to sell beef to the federal government.[^111] Prior
to this action, Westland had been the second-largest supplier of beef to
AMS and the National School Lunch Program, supplying beef to schools in
47 states and D.C., and it had been honored by USDA as "Supplier of the
Year" during the 2004-2005 academic year.

As a result of the illegal handling and slaughter of non-ambulatory
cattle, and the introduction of these animals into the food chain, USDA
called upon the now defunct company to conduct the largest meat recall
in U.S. history.[^112] The investigative findings of downed cattle
mistreatment and allegations of non-ambulatory animals being slaughtered
for human consumption also prompted congressional reaction,[^113] led
school districts to pull beef from their menus,[^114] and cast
widespread doubt on the reliability of the USDA inspection
process.[^115]

The Humane Methods of Slaughter Act, 7 U.S.C. §§ 1901 *et seq.*,
provides that "the slaughtering of livestock and the handling of
livestock in connection with slaughter shall be carried out only by
humane methods."

7 U.S.C. § 1901. As long as any loopholes remain in the ban that allow
downed cattle to be slaughtered, even if only under limited
circumstances, there will remain the risk of inhumane treatment.[^116]

Responsible producers already work to prevent animals from getting sick
or injured, and euthanize those who become non-ambulatory while they're
still on the farm. A study by a veterinarian with the California
Department of Food and Agriculture determined the net value of a downed
animal sent to slaughter was just \$28.70.[^117] According to USDA,
before the ban announced in December 2003, downers comprised just
0.4-0.8% of all cattle slaughtered annually in this country.[^118]

A bright-line, comprehensive ban will help incentivize producers and
transporters to engage in responsible husbandry and handling practices,
reducing the number of non-ambulatory cattle to levels approaching zero.
Dr. Grandin has noted that as many as 90% of all downer cases are
preventable.[^119] Since "\[h\]andling a downer dairy cow in a humane
manner is almost impossible,"[^120] she writes, "\[t\]he best way to
improve the welfare of non-ambulatory (downer) cattle is to prevent
them."[^121]

The Proposed Rule rightly acknowledges that a loophole in the
disposition of downed cattle may cause establishments to present sick or
injured cattle for slaughter in the hope that such cattle will be
ambulatory just long enough to be slaughtered. Therefore, it correctly
requires that all non-ambulatory disabled cattle be considered unfit for
human consumption, and thus adulterated. Only such a bright line rule
will be truly enforceable and will not rely on an inherently subjective
process prone to mistakes and abuse.

According to the Proposed Rule, about 1,300 downed cattle were
slaughtered for human food in 2007 following re-inspection under the
loophole, and that does not even count an untold number of downers who
were illegally moved to slaughter without benefit of an inspector's
reevaluation (as was documented in the Hallmark/Westland footage). The
current flawed rule depends on plant workers summoning a USDA inspector
back to reevaluate an animal who becomes non-ambulatory after initial
inspection, in order for the inspector to decide if the animal can be
slaughtered, a system that seems bound to fail given the enormous
pressure plant workers are under by their company superiors to move the
maximum number of animals quickly to slaughter. This system also depends
on inspectors making snap judgments about the perceived health and
safety of each downed animal, when we know how difficult, if not
impossible, it is for inspectors to determine the full reason(s) behind
a particular animal's inability to stand and walk and when injury and
illness are often interrelated. And the current system disregards the
humane concerns for those cattle who become non-ambulatory after
antemortem inspection: even if "only" a broken leg is involved, dragging
an animal with a fracture is just as cruel, if not more so. Anyone who
has ever suffered a broken limb can imagine the pain of being pulled by
chains or rammed with a forklift in that condition.

> **D. The Proposed Rule, including a requirement that the establishment
> notify FSIS inspectors when cattle become non-ambulatory after
> antemortem inspection, is urgently needed so that establishments are
> not provided an incentive to use any means necessary to get sick and
> injured cattle to slaughter.**

The HSUS investigation at the Hallmark/Westland Meat Packing Company
demonstrates the food safety risk and burden that is placed on the
nation's food supply when the regulatory scheme contains loopholes
allowing establishments to circumvent the ban. Rather than simply expose
one company's abusive practices, however, this investigation led to the
inescapable conclusion that there are severe shortcomings in USDA's
policy on handling downer cattle and the agency's oversight of live
animals at slaughter plants.

In the background section of the Proposed Rule, USDA makes explicit
reference to the findings at the Hallmark/Westland Meat Packing Company,
noting that this "recent significant event highlighted a vulnerability
in the inspection system that needs to be addressed." Proposed Rule at
50890. USDA goes on to predicate the requirement that the establishment
notify FSIS inspectors when cattle become non-ambulatory after
antemortem inspection on the notion that "\[t\]his regulatory
requirement should preclude establishments from attempting to force such
animals to rise." *Id*. at 50891.

HSUS concurs with this requirement as it is a significant improvement
over the existing loophole, which allows FSIS personnel to make a
case-by-case determination regarding the disposition of these animals
and contributed to the egregious acts of cruelty documented during the
investigation of the Hallmark/Westland Meat Packing Company. The
affirmative obligation to notify inspection personnel when cattle become
non-ambulatory after antemortem inspection must not be tied to the
possibility that these cattle will subsequently be approved for
slaughter.

**IV. Additional Actions the Agency Should Take Immediately**

> **A. USDA should take this opportunity to issue a rule extending the
> downer cattle ban to auctions, markets, stockyards, and transport
> vehicles, and requiring immediate humane euthanasia of all
> non-ambulatory cattle when they arrive at a facility (including a
> slaughter facility) in that condition or when they become
> non-ambulatory at the facility.**

In June 2008, five months after releasing the findings of the
Hallmark/Westland Meat Packing Company investigation, HSUS released the
results of subsequent investigations at five livestock auctions that
revealed the continued abuse of downed cattle. At the Portales Livestock
Auction in New Mexico, for example, the HSUS investigator observed the
sale of three downed cows who had been tormented to get them into the
auction area. Details of the mistreatment of downed cattle that was
observed include: downed cows repeatedly shocked in an attempt to get
them to rise; a downed cow being dragged by a chain around one leg,
pulled by a Bobcat tractor, with the animal's leg severely
hyper-extended; and a downed cow forced to crawl on her front knees by
workers who repeatedly shocked her.[^122]

The fact that abuses were observed at these facilities even after so
much national and international media attention had shone a spotlight on
the mistreatment of downed cattle in the United States suggests that the
abuses documented at the Hallmark/Westland Meat Packing Company were not
an aberration or isolated case. Indeed, HSUS's subsequent auction
investigations found abuses to non-ambulatory cattle at each of the five
sites visited. As such, it is critical that the ban on downed cattle be
extended to the more than 1,200 markets and auctions that operate around
the nation, as well as stockyards and transport trucks.

Immediate and humane euthanasia of all non-ambulatory cattle at
auctions, markets, stockyards, slaughter facilities, and on transport
vehicles regardless of the reason(s) an animal is non-ambulatory should
be required. This should include confirmation of clinical death prior to
carcass disposal.

Non-ambulatory cattle should be considered veterinary medical
emergencies, as stated by Stull *et al*.,[^123] and should be humanely
euthanized immediately. Methods deemed acceptable---when performed
properly by veterinarian or trained personnel---include captive bolt,
gunshot, or, if not proscribed by the rendering facility,
barbiturate-containing euthanasia solution.[^124]

In addition, death should be verified prior to disposal of the animal's
body. Confirmation of death should include all three of the following
indicators, each absent for more than five consecutive minutes: 1) lack
of heartbeat (determined with stethoscope, not pulse); 2) lack of
respiration; and 3) lack of corneal reflex. Visible rigor mortis can
also serve to confirm death, when observed over a longer period, but
only after the three indicators above have already been observed.

USDA should issue an emergency rule, effective immediately, applying the
Proposed Rule's comprehensive ban to these additional facilities and
requiring immediate humane euthanasia while comments are solicited for a
final rule. Congress has expressly charged USDA with promulgating
regulations to provide for the humane treatment of non-ambulatory
livestock "by stockyards, market agencies, and dealers." 7 U.S.C. §
1907. As explained above, in the past USDA has exercised its authority
to issue interim final rules pursuant to the Administrative Procedure
Act, 5 U.S.C. § 553, and should not hesitate to do so in this instance
in light of the serious humane treatment and food safety risks at stake.

In the alternative, USDA should immediately issue a proposed rule
extending the downed cattle ban to auctions, markets, stockyards, and
transport vehicles, and requiring immediate humane euthanasia of downed
cattle, and move quickly to solicit comments and issue a final rule to
adopt these urgent reforms.

> **B. USDA should take this opportunity to issue proposed rules
> addressing other welfare problems for sick and injured animals,
> including:**
>
> 1\. Egregious practices on any animal not standing or with a broken
> limb, such as forcefully striking the animal with an object, dragging
> the animal, ramming or otherwise attempting to get the animal to stand
> using heavy machinery, or using electric shock, water pressure, or
> other extreme methods should be prohibited.

At the Hallmark/Westland Meat Packing Company, the HSUS investigator
witnessed blatant and commonplace cruelties inflicted on animals daily
in which employees purposefully ignored regulations meant to prevent the
torment and abuse of downed animals simply so they could get them into
the kill box. The investigator filmed workers ramming cows unable to
stand with the blades of a forklift; jabbing them in the eyes; applying
painful electrical shocks, often in sensitive areas; dragging them with
chains attached to apparently broken limbs, pulled by heavy machinery;
and torturing them with a high-pressure water hose to simulate drowning,
in attempts to force crippled animals to walk to slaughter. In one case,
he videotaped a cow who collapsed on her way into the stunning box.
After she was electrically shocked and still could not stand, she was
shot in the head with a captive bolt gun to stun her and then dragged on
her knees into slaughter. It is important to note that these were not
isolated incidences of mistreatment of downed cattle, but deliberate
acts that happened routinely at the plant.

This year's HSUS investigations are not alone in uncovering such
scandalous and abusive treatment of downed cattle, they are just the
most recent. Others[^125]^,^[^126]^,^[^127] have also documented
cruelties inflicted upon crippled cattle in efforts to move them at
slaughter facilities.

Although such abuse may be currently condemned in FSIS directives to its
inspectors---this is wholly inadequate because these directives (1) do
not have the force of law; (2) may be easily amended or completely
obviated without observance of the Administrative Procedure Act public
participation requirments; and (3) are not directed to the industry, but
rather just to inspectors. An ever-shifting patchwork of non-binding
directives distributed to inspectors is simply not a substitute for
clear lawfully promulgated regulations.

> 2\. The humane euthanasia of all non-ambulatory livestock---not just
> cattle---should be required.

Like downed cattle, non-ambulatory pigs, sheep, and other mammals suffer
when they are dragged by chains, shoved by forklift, and subjected to
electric shock or other cruel means to try to get them on their feet for
slaughter. They also may be at heightened risk of transmitting disease
to consumers. For example, experimental[^128] and epidemiologic[^129]
evidence suggests that pigs may harbor a porcine spongiform
encephalopathy. Although studies have not been conducted to investigate
potential pathogen concerns for downed livestock of other species, they
may also be more likely to harbor foodborne bacteria such as *E. coli*
and *Salmonella*, as these non-ambulatory animals also often wallow in
bacteria-laden waste and may have higher levels of intestinal pathogens
due to stress.

> **C. USDA should immediately institute reforms to improve oversight of
> live animals at slaughter plants**

Many of the problems revealed by our undercover investigation at
Westland/Hallmark stemmed from inadequate oversight of live animals and
their handling, despite a full cadre of five inspectors present at the
facility while egregious abuses were routinely occurring. USDA can and
should institute many needed reforms to its inspection regime without
rulemaking. For those reforms requiring rulemaking, we urge the agency
to begin the rulemaking process expeditiously.

USDA must ensure that inspectors are observing live animals when they
first arrive at slaughter plants and as they are offloaded and handled
in pens and chutes, and that they are acting to avert violations of the
Humane Methods of Slaughter Act and regulations pursuant to that law, as
well as regulations regarding nonambulatory animals. To meet these
goals, the following combination of reforms should be implemented:

> 1\. More inspectors are observing live animals;
>
> 2\. All inspectors are trained and directed to monitor the treatment
> of live animals to ensure that they are handled humanely. Inspectors
> must understand that their oversight responsibilities begin at the
> moment animals arrive at slaughter premises, including when the
> animals are on trucks at slaughter facilities;
>
> 3\. An inspector is meeting each truck when it arrives on the premises
> and ordering the immediate humane euthanasia and condemnation of any
> livestock who are non-ambulatory;
>
> 4\. Inspections are unannounced and not on a predictable schedule;
>
> 5\. In-person inspections are supplemented with video surveillance as
> needed to allow for viewing of all animal handling, from the time each
> animal arrives at the slaughter premises through the time of death.
> Video footage should be preserved for forensic purposes so that it is
> possible to go back and look at particular scenes to determine if
> violations occurred;
>
> 6 Inspectors are rotated to ensure that they do not become too close
> with plant personnel; and
>
> 7\. USDA personnel -- under the Office of Inspector General or
> otherwise -- are conducting undercover investigations at slaughter
> plants, to provide a significant deterrent against violations and
> expand on the capacity of private nonprofit organizations to carry out
> such investigations.

**V. Conclusion**

The Proposed Rule is long overdue and, in the interests of animal
welfare and food safety, should be finalized immediately:

-   The Proposed Rule is necessary under the Federal Meat Inspection Act
    (FMIA) because of the food safety risks of allowing any downed
    cattle to be slaughtered (including BSE, *E. coli*, and
    *Salmonella*).

-   The Proposed Rule is also necessary under the Humane Methods of
    Slaughter Act (HMSA), which requires that all livestock be treated
    humanely in connection with slaughter.

-   The Proposed Rule, including a requirement that the establishment
    notify FSIS inspectors when cattle become non-ambulatory after
    antemortem inspection, is urgently needed so that establishments are
    no longer incentivized to use any means necessary to get sick and
    injured cattle to slaughter.

Additional actions the agency should take immediately in conjunction
with finalizing the Proposed Rule include:

-   Issuing an emergency rule, effective immediately, to apply the ban
    on non-ambulatory cattle to auctions, markets, stockyards, and
    transport vehicles, and require immediate humane euthanasia of all
    non-ambulatory cattle when they arrive at a facility (including a
    slaughter facility) in that condition or when they become
    non-ambulatory at the facility, or, in the alternative, issuing a
    proposed rule that would apply the downer ban to non-ambulatory
    cattle at these facilities and require their immediate humane
    euthanasia and soliciting comments on these reforms.

-   Issuing proposed rules addressing other welfare problems for sick
    and injured animals, including:

    -   Prohibiting egregious practices inflicted upon any animal not
        standing or with a broken limb, such as forcefully striking the
        animal with an object, dragging the animal, ramming or otherwise
        attempting to get the animal to stand using heavy machinery, or
        using electric shock, water pressure, or other extreme methods.

    -   Requiring that all non-ambulatory animals---not just cattle---be
        condemned and humanely euthanized.

-   Substantially reworking the agency's oversight and inspection
    systems to ensure humane treatment of live animals at slaughter
    facilities.

[^1]: U.S. Department of Agriculture Food Safety and Inspection Service.
    2004. Prohibition of the use of specified risk materials for human
    food and requirements for the disposition of non-ambulatory disabled
    cattle; meat produced by advanced meat/bone separation machinery and
    meat recovery (AMR) systems; prohibition of the use of certain
    stunning devices used to immobilize cattle curing slaughter; bovine
    spongiform encephalopathy surveillance program; interim final rules
    and notice. Federal Register 69(7):1861-74.
    <http://www.fsis.usda.gov/OPPDE/rdad/FRPubs/03-025IF.pdf>. Accessed
    February 19, 2008.

[^2]: Detwiler LA. 2004. Comments submitted to USDA FSIS re docket
    03-025IF, May 7.
    <http://www.fsis.usda.gov/OPPDE/Comments/03-025IF/03-025IF-634.pdf>.
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[^3]: Campbell D. 1993. Killer mad cow disease strikes in Alberta.
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[^4]: U.S. Department of Agriculture. 2003. USDA BSE update (press
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    <http://www.usda.gov/wps/portal/!ut/p/_s.7_0_A/7_0_1OB/.cmd/ad/.ar/sa.retrievecontent/.c/6_2_1UH/.ce/7_2_5JM/.p/5_2_4TQ/.d/7/_th/J_2_9D/_s.7_0_A/7_0_1OB?PC_7_2_5JM_contentid=2003/12/0445.html&PC_7_2_5JM_navtype=RT&PC_7_2_5JM_parentnav=TRANSCRIPTS_SPEEC>.
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[^5]: Johnsrude L and Richards G. 2005. Feed bought after ban fed to
    latest mad cow: 104 other calves had access to same feed in spring
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[^6]: Campbell D. 1993. Killer mad cow disease strikes in Alberta.
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[^7]: U.S. Department of Agriculture. 2003. USDA BSE update (press
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    <http://www.usda.gov/wps/portal/!ut/p/_s.7_0_A/7_0_1OB/.cmd/ad/.ar/sa.retrievecontent/.c/6_2_1UH/.ce/7_2_5JM/.p/5_2_4TQ/.d/7/_th/J_2_9D/_s.7_0_A/7_0_1OB?PC_7_2_5JM_contentid=2003/12/0445.html&PC_7_2_5JM_navtype=RT&PC_7_2_5JM_parentnav=TRANSCRIPTS_SPEEC>.
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[^8]: Assuming an incidence of 500, 000 nonambulatory cattle a year
    \[Stull CL Payne MA Berry SL and Reynolds JP. 2007. A review of the
    causes prevention and welfare of nonambulatory cattle. Journal of
    the American Veterinary Medical Association 231(2):227-34\] and that
    such cattle represent 75% of the those tested over the 14 years of
    USDA testing as was the case in 2002-2003 \[USDA Release No. 0457.04
    Office of Communications 202 720-4623 BSE Update January 2 2004.
    [www.usda.gov/wps/portal/!ut/p/\_s.7_0_A/7_0_1OB?contentidonly=true&contentid=2004/01/0457.html](http://www.usda.gov/wps/portal/!ut/p/_s.7_0_A/7_0_1OB?contentidonly=true&contentid=2004/01/0457.html)[.]{.underline}
    Accessed February 19, 2008.\].

[^9]: Johnsrude L and Richards G. 2005. Feed bought after ban fed to
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    p. A1.

[^10]: Stull CL, Payne MA, Berry SL, and Reynolds JP. 2007. A review of
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[^11]: Harwood JPP. 2003. Tackling the problem of the downer cow: cause,
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[^12]: Hisey P. 2005. USDA plans to ease restrictions on slaughter of
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[^13]: U.S. Department of Agriculture Office of Inspector General. 2006.
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[^14]: For analysis of the public comments, please see:

    [*http://files.hsus.org/web-files/PDF/2004_06_16_rept_USDA_comments.pdf*](http://files.hsus.org/web-files/PDF/2004_06_16_rept_USDA_comments.pdf).

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[^18]: U.S. Department of Agriculture Office of Inspector General. 2004.
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[^21]: European Commission. 2002. Report on the monitoring and testing
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[^22]: Stull CL, Payne MA, Berry SL, and Reynolds JP. 2007. A review of
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[^34]: Campbell D. 1993. Killer mad cow disease strikes in Alberta.
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[^35]: Canadian Food Inspection Agency. 2003. Summary of the report of
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[^36]: U.S. Department of Agriculture. 2003. USDA BSE update (press
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[^47]: Canadian Food Inspection Agency personal communication 10:31a
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