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[Federal Register Volume 76, Number 173 (Wednesday, September 7, 2011)]
[Rules and Regulations]
[Pages 55213-55217]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22762]

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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 88

[Docket No. APHIS-2006-0168]
RIN 0579-AC49

Commercial Transportation of Equines to Slaughter

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations regarding the commercial 
transportation of equines to slaughter to add a definition of equine 
for slaughter and make other changes that will extend the protections 
afforded by the regulations to equines bound for slaughter but 
delivered first to an assembly point, feedlot, or stockyard. This 
action will further ensure the humane treatment of such equines by 
helping to ensure that the unique and special needs of equines in 
commercial transportation to slaughter are met.

DATES: Effective Date: October 7, 2011.

FOR FURTHER INFORMATION CONTACT: Dr. P. Gary Egrie, Farm Animal Welfare 
Coordinator, VS, APHIS, 4700 River Road Unit 46, Riverdale, MD 20737; 
(301) 734-0695.

SUPPLEMENTARY INFORMATION: 

Background

    The regulations in 9 CFR part 88 (referred to below as the 
regulations) contain minimum standards to ensure the humane movement of 
equines for slaughter via commercial transportation. The regulations 
cover, among other things, the food, water, and rest provided to such 
equines prior to their transportation to slaughter, standards for 
conveyances used to transport equines to slaughter, and certain 
paperwork required to accompany equines during such transportation. The 
regulations also require the owner/shipper of the equines to take 
certain actions to ensure the safety and humane treatment of equines 
during loading and transportation for slaughter, including seeking 
immediate assistance from an equine veterinarian for any equine in 
obvious physical distress. In addition, the regulations prohibit the 
commercial transportation to slaughtering facilities

[[Page 55214]]

of equines considered to be unfit for travel, the use of electric prods 
on equines in commercial transportation to slaughter, and, after 
December 7, 2006, the use of double-deck trailers for commercial 
transportation of equines to slaughtering facilities. The regulations 
were issued pursuant to the provisions of the Federal Agriculture 
Improvement and Reform Act of 1996 (the Act), in which Congress, 
recognizing that equines being transported to slaughter have unique and 
special needs, authorized the Secretary of Agriculture to issue 
guidelines for the regulation of the commercial transportation of 
equines for slaughter by persons regularly engaged in that activity in 
the United States (see 7 U.S.C. 1901 note).
    On November 7, 2007, we published in the Federal Register (72 FR 
62798-62802, Docket No. APHIS-2006-0168) a proposed rule \1\ to amend 
the regulations by adding a definition of equine for slaughter and make 
other changes that would extend the protections afforded by the 
regulations to slaughter equines delivered first to an assembly point, 
feedlot, or stockyard. We proposed this action to further ensure the 
humane treatment of such equines by helping to ensure that the unique 
and special needs of equines in commercial transportation to slaughter 
are met.
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    \1\ To view the proposed rule, economic analysis, and the 
comments we received, go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0168.
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    We solicited comments concerning our proposal for 60 days ending 
January 7, 2008. We received 93 comments by that date. They were from 
private citizens, a State animal industry board, livestock industry 
associations, horse rescue organizations, animal welfare groups, and a 
foreign government. Thirty-five commenters supported the rule as 
proposed. Four commenters opposed the rule but did not address its 
specific provisions. The remaining commenters raised several issues 
relating to the proposed rule. These issues are discussed below.
    Several commenters opposed the rule because of the potential for 
negative economic impacts on those engaged in horse transport but did 
not discuss specific issues. One of these commenters expressed concern 
that these potential negative economic impacts could result in horse 
abandonment.
    We have prepared an analysis of the potential economic effects of 
the rule, as required by the Regulatory Flexibility Act. Based on that 
analysis, a summary of which is set forth below,\2\ we do not expect 
that this rule will have a significant economic impact on small 
entities. Similar concerns about horse abandonment were expressed when 
the regulations were first adopted in 2001, but horse abandonment did 
not increase significantly then, and therefore we do not anticipate 
that horse abandonment will increase as a result of this final rule.
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    \2\ The complete economic analysis is available on the 
regulations.gov Web site. See footnote 1 for directions on accessing 
the Web site.
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    Seven commenters asked how the regulations would be enforced and 
expressed concern that enforcement will not be sufficiently aggressive.
    Enforcement is and will continue to be a cooperative effort between 
the Animal and Plant Health Inspection Service (APHIS) and State 
officials. APHIS will take strong measures to ensure that the 
requirements of the regulations are met and violations prosecuted.
    Two commenters asked why, if the number of entities transporting 
equines to slaughter is under 100, APHIS did not work with them to gain 
voluntary compliance.
    APHIS has worked, and continues to work, with owner/shippers to 
gain compliance with the regulations. However, as a result of the 
closure of slaughter facilities that handle equines in the United 
States, there is an increased need to transport the equines to 
intermediate points before transporting them to slaughter facilities. 
Therefore the risk for those equines being treated inhumanely has 
increased as well. For reasons that are elaborated in the final 
regulatory flexibility analysis, we believe that most transporters to 
and from intermediate points are already in compliance with most or all 
of the rule's requirements on a voluntary basis. However, we also need 
regulatory options to address the owner/shippers who have chosen not to 
transport them humanely.
    One commenter requested that the terms ``assembly point,'' 
``feedlot,'' and ``stockyard'' be defined in the regulations to improve 
clarity.
    We agree with the commenter and will add definitions for these 
terms to the regulations. Those terms are set forth in the regulatory 
text at the end of this document and are intended to be consistent with 
common industry and dictionary definitions of those terms as well as 
with the definitions established by the Grain Inspection, Packers, and 
Stockyards Administration in 9 CFR part 201.
    One commenter stated that the definition of ``shipper'' is too 
narrow and will exempt commercial shipments of equines to slaughter 
when those shipments are incidental to the primary activity of 
production agriculture.
    APHIS disagrees that the definition is too narrow. The definition 
specifies that for purposes of these regulations, ``production 
agriculture'' means food or fiber production. Therefore, any entity 
that moves more than 20 equines to slaughter annually is subject to the 
regulations, regardless of that entity's primary line of business. We 
did not propose to amend the definition of ``owner/shipper'' already 
established in the regulations and are making no changes in response to 
this comment.
    Several commenters asked for changes to the definition for equine 
for slaughter. Some of these commenters stated that the term should 
exclude equines moving from premises of origin to a market or assembly 
point. Others asked that the definition be expanded to include equines 
moving to auctions specifically.
    These suggested modifications are not consistent with the 
definition in the Act. We are making no changes in response to these 
comments.
    One commenter stated that because there are no equine slaughter 
facilities in the United States at this time, the rule will not 
accomplish anything.
    The commenter is correct that there are currently no equine 
slaughter facilities in the United States, but equines are still being 
sent to slaughter in Mexico and Canada. These animals need protection 
on their way to the border. Furthermore, while some States have banned 
horse slaughter, not all have done so, and the possibility exists that 
slaughter facilities that handle equines may open in the future.
    Three commenters stated a certificate of veterinary inspection and 
a negative equine infectious anemia (EIA) test chart may not be 
reliable evidence that an equine is not for slaughter.
    We agree with the commenters, but note that there are other ways to 
tell if an equine is for slaughter; for example, horses come away from 
sales designated as slaughter animals on the bill of sale. We have 
never used the presence or absence of certificates of veterinary 
inspection or EIA test charts as the sole means of identifying 
slaughter equines.
    One commenter stated that the same penalties that apply to owner/
shippers who falsify documents such as certificates of veterinary 
inspection and EIA test charts should also apply to veterinarians who 
provide falsified documents.

[[Page 55215]]

    APHIS notes that the same penalties already do apply to both owner/
shippers and veterinarians who provide falsified documents.
    One commenter stated that the regulations should be extended to 
prohibit the transport of heavily pregnant mares, and that owner/
shippers should be automatically considered in violation of the 
regulations if a mare gives birth in transit.
    APHIS notes that the regulations already provide these protections 
to heavily pregnant mares. The owner/shipper certificate must include a 
statement of fitness to travel at the time of loading, which will 
indicate that the equine is able to bear weight on all four limbs, is 
able to walk unassisted, is not blind in both eyes, is older than 6 
months of age, and is not likely to give birth during the trip. These 
certificates are subject to review by a United States Department of 
Agriculture (USDA) representative and the USDA representative may 
direct the owner/shipper to take appropriate actions to alleviate the 
suffering of any equine.
    One commenter stated that if an equine arrives at a slaughter 
facility or United States border crossing with an injury that should 
have prevented the equine from being transported, the owner/shipper 
should be found in violation of the regulations and subject to civil 
penalties.
    APHIS notes that this is already the case. As we described above in 
reference to heavily pregnant mares, the owner/shipper certificate must 
include a statement of fitness to travel, and these certificates are 
subject to review by USDA representatives, who may direct the owner/
shipper to take appropriate action to alleviate the suffering of any 
equine.
    One commenter asked how APHIS defines inhumane treatment, and 
whether it was different for equines than for other livestock. Another 
commenter asked for elaboration as to why double-deck trailers 
specifically are considered a source of injury or discomfort to 
equines.
    For purposes of this regulation, APHIS considers inhumane treatment 
to mean actions that result in the infliction of pain, discomfort, or 
distress on equines for slaughter. There is a sizeable body of 
evidence, including studies in peer-reviewed journals, showing that 
significantly more equines are injured during transport in double-deck 
trailers than in single-deck trailers.\3\ Double-deck trailers do not 
provide adequate headroom for adult equines, which may acquire cuts and 
abrasions on the tops of their heads. Because equines cannot stand in a 
normal position with their heads raised, they cannot maintain balance 
as easily and may suffer injuries from falling. In addition, 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 and 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.
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    \3\ See, e.g., C.L. Stull, ``Responses of Horses to Trailer 
Design, Duration, and Floor Area During Commercial Transportation to 
Slaughter,'' J. Anim. Sci. 77:2925-2933; Temple Grandin, Livestock 
Handling and Transport (CABI, 2007), 257.
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    One commenter asked if APHIS had considered issuing more specific 
guidelines for trailer design specifications rather than banning 
double-deck trailers outright.
    As we explained above, there is a significant body of evidence 
indicating that many more equines are injured during transport in 
double-deck trailers than in single-deck trailers. 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.
    One commenter stated that the proposed ban on electric prods is 
inappropriate without solid scientific evidence to support it.
    We did not propose to ban the use of electric prods on equines for 
slaughter. The regulations already provide that electric prods may not 
be used on equines for slaughter except when human safety is 
threatened.
    A number of commenters requested changes outside the scope of the 
current rulemaking. These changes included adding certification 
requirements for owner/shippers, adding inspection requirements, and 
increasing recordkeeping requirements. These changes, if undertaken, 
would have to be part of a separate rulemaking and made available for 
public comment before being adopted.
    Many commenters suggested banning the use of double-deck trailers 
for transport of all equines, restricting shipments of equines to 
Mexico and Canada, establishing a complete ban on the use of electric 
prods, and outlawing slaughter of equines in the United States. These 
suggested actions are outside APHIS' statutory authority.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.
Executive Orders 12866 and 13563 and Regulatory Flexibility Act
    This final rule has been determined to be significant for the 
purposes of Executive Order 12866 and, therefore, has been reviewed by 
the Office of Management and Budget.
    We have prepared an economic analysis for this rule. The economic 
analysis provides a cost-benefit analysis, as required by Executive 
Orders 12866 and 13563, which direct agencies to assess the costs and 
benefits of available regulatory alternatives and to select regulatory 
approaches that maximize benefits, reduce costs, harmonize rules across 
agencies, and promote flexibility. The economic analysis also analyzes 
the potential economic effects of this action on small entities, as 
required by the Regulatory Flexibility Act. The analysis is summarized 
below. Copies of the full analysis are available by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT or on the 
Regulations.gov Web site (see footnote 1 above for instructions for 
accessing Regulations.gov).
    This final rule amends the regulations regarding the commercial 
transportation of equines to slaughter by making equines delivered to 
intermediate points en route to slaughter subject to the same 
regulations as those moved directly to slaughtering establishments. The 
purpose of the rule is to ensure the humane treatment of equines bound 
for slaughter that are moved first to an assembly point, feedlot, or 
stockyard.
    The regulations require that the equines have access to food, water 
and the opportunity to rest for at least 6 hours prior to transit and 
following 28 consecutive hours or more of transit; adequate space 
during transit to prevent injury or discomfort; segregation of

[[Page 55216]]

stallions or other aggressive equines; use of electric prods only in 
life-threatening situations; and certification of each equine's fitness 
to travel, including notation of any special handling needs.
    Since 2007, no commercial equine slaughter facilities have operated 
in the United States. However, the amended regulations will apply to 
entities that transport equines within the United States for slaughter 
in Canada or Mexico. Shippers who transport equines from farms or 
feedlots to intermediate points en route to slaughter are likely to be 
largely in regulatory compliance voluntarily. They have an incentive to 
provide the animals with food, water, and care as required by the 
regulations because healthy equines have increased slaughter value.
    The rule will ban the use of double-deck trailers, as is currently 
the case when equines are transported directly to slaughter. Double-
deck trailers have a greater carrying capacity (45 equines) than 
single-deck trailers (38 equines). Fewer equines per conveyance will 
mean increased transportation costs on a per animal basis. Commercial 
transporters typically charge a flat rate per shipment, and should be 
little affected by the ban on double-deck trailers. However, businesses 
that rely on their own or hired double-deck trailers to transport 
equines will be negatively affected by the reduced number of animals 
that can be transported per trip. Notwithstanding the prevalence of 
small entities among businesses that may be affected, the effects of 
the rule are expected to be relatively minor.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule: (1) Preempts all State and local laws 
and regulations that are in conflict with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Executive Order 13175

    In accordance with Executive Order 13175, APHIS has consulted with 
Tribal Government officials. A tribal summary impact statement has been 
prepared that includes a summary of Tribal officials' concerns and of 
how APHIS has attempted to address them. The tribal summary impact 
statement may be viewed on the Regulations.gov Web site (see http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0168). In addition, copies may be 
obtained by calling or writing to the individual listed under FOR 
FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this rule have been approved by the Office of Management 
and Budget (OMB) under OMB control number 0579-0332.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this rule, please contact Mrs. Celeste Sickles, 
APHIS' Information Collection Coordinator, at (301) 851-2908.

List of Subjects in 9 CFR Part 88

    Animal welfare, Horses, Reporting and recordkeeping requirements, 
Transportation.

    Accordingly, we are amending 9 CFR part 88 as follows:

PART 88--COMMERCIAL TRANSPORTATION OF EQUINES FOR SLAUGHTER

0
1. The authority citation for part 88 continues to read as follows:

    Authority:  7 U.S.C. 1901, 7 CFR 2.22, 2.80, 371.4.

0
2. Section 88.1 is amended by adding, in alphabetical order, new 
definitions for ``assembly point'', ``equine for slaughter'', 
``feedlot'', and ``stockyard'' to read as follows:

Sec.  88.1  Definitions.

* * * * *
    Assembly point. Any facility, including auction markets, ranches, 
feedlots, and stockyards, in which equines are gathered in commerce.
* * * * *
    Equine for slaughter. Any member of the Equidae family being 
transferred to a slaughter facility, including an assembly point, 
feedlot, or stockyard.
* * * * *
    Feedlot. Any facility which consolidates livestock for 
preconditioning, feeding, fattening, or holding before being sent to 
slaughter.
* * * * *
    Stockyard. Any place, establishment, or facility commonly known as 
stockyards, conducted, operated, or managed for profit or nonprofit as 
a public market for livestock producers, feeders, market agencies, and 
buyers, consisting of pens, or other enclosures, and their 
appurtenances, in which live cattle, sheep, swine, horses, mules, or 
goats are received, held, or kept for sale or shipment in commerce.
* * * * *

Sec.  88.2  [Amended]

0
3. In Sec.  88.2, paragraph (b) is amended by removing the words 
``equines to a slaughtering facility'' and adding the words ``equines 
for slaughter'' in their place.

Sec.  88.3  [Amended]

0
4. Section 88.3 is amended as follows:
0
a. In paragraph (a) introductory text, by removing the words ``equines 
to slaughtering facilities'' and adding the words ``equines for 
slaughter'' in their place.
0
b. In paragraph (b), by removing the words ``Equines in commercial 
transportation to slaughtering facilities'' and adding the words 
``Equines for slaughter'' in their place.

Sec.  88.4  [Amended]

0
5. Section 88.4 is amended as follows:
0
a. In paragraph (a) introductory text, by removing the words ``equines 
to a slaughtering facility'' and adding the words ``equines for 
slaughter'' in their place.
0
b. In paragraph (a)(3) introductory text, by removing the words 
``transit to the slaughtering facility'' and adding the words ``transit 
to slaughter'' in their place.
0
c. In paragraph (b) introductory text, by removing the words ``transit 
to the slaughtering facility'' and adding the words ``commercial 
transportation of equines for slaughter'' in their place.
0
d. In paragraph (b)(4), by removing the words ``equine to the 
slaughtering facility'' and adding the words ``equines for slaughter'' 
in their place.
0
e. In paragraph (c), by removing the words ``equines in commercial

[[Page 55217]]

transportation to a slaughtering facility'' both times they occur and 
adding the words ``equines for slaughter'' in their place.
0
f. In paragraphs (d) and (e), by removing the words ``equines to a 
slaughtering facility'' both times they occur and adding the words 
``equines for slaughter'' in their place.
0
g. By adding an OMB citation at the end of the section to read 
``(Approved by the Office of Management and Budget under control 
numbers 0579-0160 and 0579-0332)''.

    Done in Washington, DC, this 30th day of August 2011.
Edward Avalos,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2011-22762 Filed 9-6-11; 8:45 am]
BILLING CODE 3410-34-P
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