[Federal Register: December 7, 2001 (Volume 66, Number 236)]
[Rules and Regulations]               
[Page 63587-63617]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07de01-9]                         


[[Page 63587]]

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

Part II





Department of Agriculture





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



Animal and Plant Health Inspection Service



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



9 CFR Parts 70 and 88



Commercial Transportation of Equines to Slaughter; Final Rule


[[Page 63588]]


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

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Parts 70 and 88

[Docket No. 98-074-2]
RIN 0579-AB06

 
Commercial Transportation of Equines to Slaughter

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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

SUMMARY: We are establishing regulations pertaining to the commercial 
transportation of equines to slaughtering facilities. These regulations 
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 
regulations is to establish minimum standards to ensure the humane 
movement of equines to slaughtering facilities via commercial 
transportation. As directed by Congress, the regulations cover, among 
other things, the food, water, and rest provided to such equines. The 
regulations also require the owner/shipper of the equines to take 
certain actions in loading and transporting the equines and require 
that the owner/shipper of the equines certify that the commercial 
transportation meets certain requirements. In addition, the regulations 
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.

EFFECTIVE DATE: February 5, 2002.

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.

SUPPLEMENTARY INFORMATION:

Background

    We are establishing 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 the Secretary 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 (now the Under Secretary for 
Marketing and Regulatory Programs), and from that official 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 states 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 states that, to the 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.
    On May 19, 1999, we published in the Federal Register (64 FR 27210-
27221, Docket No. 98-074-1) a proposal 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 proposed 
to divide part 88 into six sections: Sec. 88.1--Definitions, 
Sec. 88.2--General information, Sec. 88.3--Standards for conveyances, 
Sec. 88.4-Requirements for transport, Sec. 88.5--Requirements at a 
slaughtering facility, and Sec. 88.6--Violations and penalties. The 
proposed regulations pertained 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.
    We solicited comments concerning our proposal for 60 days ending 
July 19, 1999. During the comment period, we received 276 comments. 
They were from animal humane associations, academia, slaughter plants, 
horse industry organizations, veterinary practitioners, a State 
government and a foreign government, the U.S. Congress, livestock 
industry organizations, livestock transporters, an organization 
representing veterinarians, and private citizens, among others.
    The commenters expressed a variety of concerns that are discussed 
below by topic. Many commenters referred to ``horses'' rather than 
``equines''; for consistency with the rule portion of this document, we 
will use the term

[[Page 63589]]

``equines,'' as appropriate, in discussing those comments.

Summary of Changes Made in Response to Comments

    We are making the following changes in response to the comments we 
received.
    1. Definitions. We have removed the separate definitions of owner 
and shipper and applied the definition of shipper to owner/shipper. As 
a result, all references to ``owner'' and ``shipper'' have been changed 
to ``owner/shipper.''
    2. General information. Proposed Sec. 88.2(b) provided that, to 
determine whether an individual or other entity transporting equines to 
a slaughtering facility is subject to the regulations, a USDA 
representative may request ``from any individual or other entity'' 
information regarding the business of the individual or other entity 
who transported the equines. We have amended that language in this 
final rule to clarify that a USDA representative may request that 
information ``from the individual or other entity who transported the 
equines.'' Also, proposed Sec. 88.2(b) stated that, when such 
information is requested, the individual or other entity who 
transported the equines ``will'' provide the information within 30 days 
and in the format specified by the USDA representative. We have amended 
this provision to clarify that the individual or other entity ``must'' 
provide the information within 30 days and in the format specified.
    3. Requirements for transport. Proposed Sec. 88.4(a)(1) specified 
that, for a period of not less than 6 hours prior to the equines being 
loaded onto the conveyance, the owner or shipper must provide each 
equine appropriate food, potable water, and the opportunity to rest. 
This final rule clarifies that the 6 hours must be immediately prior to 
the equines being loaded. Proposed Sec. 88.4(a)(3) listed information 
that must be included on the owner-shipper certificate for each equine 
being transported. This final rule adds the following information to 
that list: (1) The owner/shipper's telephone number; (2) the receiver's 
(destination) name, address, and telephone number; (3) if applicable, 
the name of the auction/market where the equine is loaded; (4) the 
breed of the equine; and (5) a description of any tattoos on the 
equine. This final rule also requires at Sec. 88.4(a)(3) that 
information provided on the owner-shipper certificate be typed or 
legibly completed in ink. Proposed Sec. 88.4(a)(3) required the owner-
shipper certificate to contain a statement of the equine's fitness to 
travel. This final rule clarifies that we mean fitness to travel at the 
time of loading. Proposed Sec. 88.4(a)(3) required a statement on the 
owner-shipper certificate about any unusual physical conditions and any 
special handling needs. We have reworded this provision to clarify that 
we mean any unusual physical conditions that may cause the equine to 
have special handling needs. Proposed Sec. 88.4(b)(2) stated that 
``veterinary assistance must be provided as soon as possible for any 
equines in obvious physical distress.'' This final rule adds that 
veterinary assistance must be provided by an equine veterinarian. In 
addition, Sec. 88.4(b)(2) of this final rule adds that if an equine 
becomes nonambulatory en route, an owner/shipper must have the equine 
euthanized by an equine veterinarian. Further, Sec. 88.4(b)(2) of this 
final rule specifies that, if an equine dies en route, the owner/
shipper must contact the nearest APHIS office as soon as possible to 
allow an APHIS veterinarian to examine the equine, and if an APHIS 
veterinarian is not available, the owner/shipper must contact an equine 
veterinarian. Proposed Sec. 88.4(e) required the shipper to secure the 
services of a veterinary professional to treat an equine, including 
performing euthanasia, if deemed necessary by the USDA representative. 
This final rule will require the veterinary professional to be an 
equine veterinarian.
    4. Requirements at a slaughtering facility. Proposed Sec. 88.5(b) 
stated that the shipper who transported the equines to the slaughtering 
facility must not leave the premises of the slaughtering facility until 
the equines have been examined by a USDA representative. Under this 
final rule, if an owner/shipper arrives at a slaughtering facility 
outside of the facility's normal business hours, the owner/shipper may 
leave the premises but must return to the premises of the slaughtering 
facility to meet the USDA representative upon his or her arrival.

Section 88.1--Definitions

Shipper and Owner
    A number of commenters expressed concerns about the proposed 
definitions of shipper and owner.
    We proposed to define 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 transports 
equines to slaughtering facilities incidental to the principal activity 
of production agriculture.'' We proposed to define owner as ``Any 
individual, partnership, corporation, or cooperative association that 
purchases equines for the purpose of sale to a slaughtering facility.'' 
We stated that both owners and shippers would be subject to the 
regulations.
    One commenter stated that exempting only those who ship equines 
once a year is too limiting and suggested allowing three shipments per 
year, which the commenter believed would allow the occasional transport 
of equines to slaughtering facilities by equine owners. One commenter 
stated that the definition of shipper should reflect both the frequency 
and number of equines transported. One commenter stated that an entity 
should have to adhere to the regulations if he or she transported more 
than 24 equines to slaughter per year.
    Based on these comments and our experience with the equine 
industry, we have decided to apply the regulations to any individual, 
partnership, corporation, or cooperative association that engages in 
the commercial transportation of more than 20 equines per year to 
slaughtering facilities, except any individual or other entity who 
transports equines to slaughtering facilities incidental to his or her 
principal activity of production agriculture. We believe that those 
entities who transport more than 20 equines per year to slaughtering 
facilities, except those entities who transport equines to slaughtering 
facilities incidental to their principal activity of production 
agriculture, should be considered as regularly engaged in the 
commercial transportation of equines to slaughter.
    Many commenters stated that replacing the term ``person'' in the 
statute with the terms ``owner'' and ``shipper'' exempts from the 
regulations horse owners who do not fit the definition of owner; and 
horse transporters who do not fit the definition of shipper and 
distorts Congress' intent. These commenters stated that Congress 
included in the definition of ``person'' any individual or entity that 
regularly engages in the transportation of equines for slaughter, 
exempting only those who occasionally transport equines to slaughter 
incidental to the principal activity of the same individual or other 
entity in production agriculture; however, the proposed definition of 
owner includes only an individual or entity that purchases equines for 
the purpose of sale to a slaughtering facility.
    We agree that the definition of owner may be confusing and could be 
interpreted to mean that certain entities that did not purchase equines 
for the

[[Page 63590]]

purpose of sale to a slaughtering facility could be excluded from the 
requirements. Therefore, in this rule, we have removed the definition 
of owner. Instead, we will use the term owner/shipper, which we have 
defined as ``Any individual, partnership, corporation, or cooperative 
association that engages in the commercial transportation of more than 
20 equines per year to slaughtering facilities, except any individual 
or other entity who transports equines to slaughtering facilities 
incidental to his or her principal activity of production 
agriculture.'' We believe that the definition of owner/shipper meets 
the intent of the definition of person in the statute.
    Many commenters objected that our proposed definitions for shipper 
and owner narrowed the scope of the statute and would provide more 
exemptions from the regulations than intended by Congress. The issue 
that was mentioned most frequently was that our proposal would exclude 
persons in the premarin mare urine (PMU) industry. They said these 
persons would not be ``shippers'' because their principal activity 
would be considered production agriculture. Others stated that the 
premarin farmer would not be an ``owner'' because the farmer did not 
purchase the foals or any other equines for the purpose of sale to a 
slaughtering facility. For the purposes of these regulations, we 
consider ``production agriculture'' to mean food or fiber production. 
The principal activity of the PMU industry is the collection of urine 
from pregnant mares for use by the pharmaceutical industry, which is 
not production agriculture. Therefore, individuals or other entities in 
the PMU industry who transport equines to slaughter incidental to this 
business would be covered by our regulations unless they ship 20 or 
fewer equines per year. To clarify that we consider production 
agriculture to mean food or fiber production, the definition of owner/
shipper in this final rule specifies that production agriculture means 
production of food or fiber.
    In addition, we believe that the new definition of owner/shipper, 
as previously explained, provides clarification as to the entities that 
must comply with the regulations.
    Some commenters appeared to believe that the term ``production 
agriculture'' includes professional horse breeders, those who sell 
riding or work horses, and persons who have riding stables or board 
horses. They expressed concern that these individuals or other entities 
would be exempt from the regulations if they transported unwanted foals 
or other equines to slaughter. Some commenters assumed that trucking 
companies would be exempt from the regulations if they moved equines to 
slaughter for a farmer whose principal activity was production 
agriculture. As explained above, we consider production agriculture to 
mean food or fiber production. None of the entities listed above are 
engaged in food or fiber production. Therefore, they would not be 
exempt from the regulations unless they ship 20 or fewer equines per 
year.
    Some commenters objected to our exempting entities who transport 
equines to slaughtering facilities incidental to their principal 
activity of production agriculture. One commenter suggested that the 
definition of shipper exempt only those who transport fewer than 10 
equines per year, and another commenter stated that we should exempt 
those who transport 50 or fewer equines per year instead of providing 
an exemption for those entities involved in production agriculture. One 
commenter objected that the proposed definition of shipper would allow 
a farmer or other entity that engages in production agriculture to ship 
any number of equines a year to slaughtering facilities without 
complying with the regulations. Another commenter stated that there is 
no legitimate reason for persons or entities who derive income from 
production agriculture to be excluded from the regulations, and that 
anyone who engages in commercial transportation should have to comply 
with the regulations.
    As stated previously, this final rule uses the term owner/shipper 
and exempts only those entities who transport 20 or fewer equines to 
slaughtering facilities per year and entities who transport equines to 
slaughtering facilities incidental to their principal activity of 
production agriculture (food or fiber production). As noted earlier, 
Congress clarified its intentions concerning who should be covered by 
the regulations in its conference report. The conference report states, 
among other things, 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 for slaughter outside of 
their regular activity. In the definition of person in the statute, 
Congress specifically exempted any individual or entity that 
occasionally transports equines for slaughter incidental to the 
principal activity of the individual or other entity in production 
agriculture.
    One commenter stated that the definitions of owner and shipper 
should be amended to exclude slaughtering facilities. We disagree. If a 
slaughtering facility possesses equines that will be transported to a 
slaughtering facility, including its own, from its own feedlot or other 
premises and the facility transports more than 20 equines a year, that 
slaughtering facility is an owner/shipper and must comply with the 
regulations.
Slaughtering Facility
    We proposed to define slaughtering facility as ``A commercial 
establishment that slaughters equines for any purpose.''
    Many commenters objected that the definition of slaughtering 
facility excludes facilities that were specifically intended by 
Congress to be covered by the regulations (i.e., assembly points, 
feedlots, and stockyards). Several commenters stated that auctions and 
sales should be added to the definition of slaughtering facility. One 
commenter stated that tracing a stolen equine would be easier if all 
locations intended by Congress were regulated by APHIS.
    The statute gives the Secretary authority to regulate the 
commercial transportation of equines to slaughtering facilities, which 
the statute indicates include assembly points, feedlots, or stockyards. 
The Secretary may use his or her discretion within this authority. At 
this time, we are defining slaughtering facility to mean only those 
establishments where equines are slaughtered because (1) we believe 
that equines moved to these facilities are most at risk of being 
transported under inhumane conditions, and (2) USDA representatives are 
available at these facilities to help enforce the regulations. Equines 
moved to assembly points and stockyards are more likely to be taken 
better care of because the purpose of the movement is for sale. Also, 
equines may not be moved from these points to slaughter. Equines sent 
to feedlots are going there for the express purpose of gaining weight. 
Plus, we have no way currently to monitor movements from all points to 
these intermediate destinations.
    Regarding lost or stolen equines, we believe that the use of the 
owner-shipper certificate will help ensure that there is documented 
identification for each equine that is transported to a slaughtering 
facility. To improve its usefulness for tracebacks, the owner-shipper 
certificate will provide for the identification of any auction/market 
where an equine is loaded. In addition, we plan to develop a database 
of the information provided on the owner-shipper certificates.

[[Page 63591]]

    One commenter stated that the definition of slaughtering facility 
should exclude assembly points, feedlots, and stockyards to which the 
equines are transported for feeding or holding if the time at such a 
location is intended to exceed 14 days.
    The definition of slaughtering facility in this rule excludes 
assembly points, feedlots, and stockyards regardless of the amount of 
time an equine spends there. However, equines moved from an assembly 
point, feedlot, or stockyard to a slaughtering facility must be 
transported in accordance with the regulations.
Commercial Transportation
    We defined commercial transportation as ``The movement for profit 
via conveyance on any highway or public road.''
    One commenter stated that the definition of commercial 
transportation should exempt transport by conveyances that are owned or 
leased by slaughtering facilities that deliver equines to their own 
slaughtering facilities.
    As stated previously, if a slaughtering facility transports equines 
to a slaughtering facility, including its own, the equines must be 
transported in accordance with the regulations.
Euthanasia
    We proposed to define euthanasia as ``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.''
    One commenter stated that we should provide a list of acceptable 
anesthetic agents, such as pentobarbital, choral hydrate, pentobarbital 
combinations, and gunshot, and require them to be administered by a 
trained person. This commenter added that succinylcholine curariform 
drugs or other paralytic agents, cyanide, strychnine, ether, and carbon 
monoxide should be prohibited.
    We do not believe that listing anesthetic agents (pharmaceuticals 
that provide a loss of sensation with or without loss of consciousness) 
or requiring them to be administered by a trained person is necessary. 
As explained later in this document, Sec. 88.4(b)(2) of this final rule 
requires veterinary assistance to be provided by an equine 
veterinarian. In addition, as explained later in this document, 
Sec. 88.4(b)(2) of this final rule provides that, if an equine becomes 
nonambulatory en route, the equine must be euthanized by an equine 
veterinarian. Also, Sec. 88.4(e) of this final rule provides that, if 
deemed necessary at any time during transportation to a slaughtering 
facility, a USDA representative may direct an owner/shipper to take 
actions to alleviate the suffering of an equine and this could include 
obtaining the services of an equine veterinarian to treat an equine, 
including performing euthanasia if necessary. An equine veterinarian 
will be aware of and will use appropriate and humane anesthetic agents 
for equines.
    As mentioned in the proposed rule, we will allocate funds for 
public information efforts and are developing educational materials 
about the humane transport of equines.\1\ These materials will include 
a list of equine veterinarians within the United States and their 
telephone numbers.
---------------------------------------------------------------------------

    \1\ To obtain information about these educational materials, 
contact the person listed under FOR FURTHER INFORMATION CONTACT.
---------------------------------------------------------------------------

Section 88.2  General information

Federal Preemption
    Proposed Sec. 88.2(a) stated that State governments may enact and 
enforce regulations that are consistent with or that are more stringent 
than the regulations.
    Many commenters expressed concerns that the regulations could 
preempt State laws that may be more stringent. Some pointed out that in 
the preamble, under the heading ``Executive Order 12988,'' we stated 
that the regulations would preempt all State and local laws and 
regulations that are in conflict with the rule. Many commenters stated 
that the Federal regulations should not preempt State regulations 
unless compliance with the State regulations would make compliance with 
the Federal regulations impossible. In particular, many commenters 
expressed concern that the regulations would preempt existing State 
bans on transporting equines in double-deck trailers.
    States may promulgate and enforce similar or even more stringent 
regulations to ensure the humane transport of equines to slaughtering 
facilities. State or local laws that are more stringent than the 
regulations will not necessarily conflict with the regulations. For 
example, the regulations would not preempt existing States' bans on 
transporting equines in double-deck trailers because double-deck 
trailers are not required by our regulations. The drivers of 
conveyances will be responsible for complying with any State laws that 
prohibit the use in a State of double-deck trailers for the 
transportation of equines to slaughter. State and local laws and 
regulations would be ``in conflict'' with the regulations established 
by this rule only if they made compliance with this rule impossible, 
just as some commenters suggested.
Collection of Information
    Proposed Sec. 88.2(b) stated that 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 to 
determine whether that individual or other entity is subject to the 
regulations. The proposal further stated that the individual or other 
entity will provide the information within 30 days and in a format as 
specified by the USDA representative.
    Several commenters stated that we should say ``must'' request 
information regarding the business of the individual or other entity 
that transported the equines and that we should state that the 
individual or other entity ``must provide'' in place of ``will 
provide.''
    We believe that ``may'' is more appropriate in the first instance 
because the USDA representative may not need to request information at 
all times to make a determination of whether an individual or other 
entity that is transporting the equines to a slaughtering facility is 
subject to the regulations. However, as to using ``must provide,'' we 
agree with the commenters and have amended the rule accordingly.
    One commenter stated that we should clarify in Sec. 88.2(b) that a 
USDA representative may request information from the entity that 
actually transported the load of equines.
    We agree. We have amended Sec. 88.2(b) to read as follows: ``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 from that individual or 
other entity information regarding the business of that individual or 
other entity. When such information is requested, the individual or 
other entity who transported the equines must provide the information 
within 30 days and in a format as may be specified by the USDA 
representative.''

Section 88.3  Standards for Conveyances

Cargo Space
    Proposed Sec. 88.3(a)(1) stated that the animal cargo space of 
conveyances used for the commercial transportation of equines to 
slaughtering facilities must 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

[[Page 63592]]

adequate ventilation, contains no sharp protrusions, etc.).
    Many commenters stated that we should explain adequate ventilation, 
and some of these commenters stated that adequate ventilation cannot be 
provided in certain conveyances. Several commenters stated that the 
requirements should address protection from the elements and extremes 
of weather. One commenter suggested that trailers be modified to use 
air scoops to control air flow and stated that trailers that cannot be 
appropriately modified for operation in extreme weather conditions 
should not be used when adverse conditions are likely to exist. This 
commenter stated that a rating system could be used to rate trailers 
for their suitability for summer or winter conditions and could 
encourage transporters to invest in better-designed trailers.
    As stated previously, the regulations are performance-based 
standards. If a conveyance does not provide adequate ventilation or 
other measures to protect the health and well-being of the equines in 
transit, it must not be used.
    The educational materials we are developing about humane transport 
of equines will include information on ventilation and transport under 
various weather conditions.
    Several commenters stated that our proposal did not address proper 
flooring in conveyances. Many commenters stated that the rule should 
require flooring within a conveyance to be of such material (rubber, 
neoprene, etc.) as to afford the animal secure footing at all times 
under all conditions. One commenter stated that welding \3/8\-inch rods 
at 12-inch intervals to the deck could prevent slipping. Many 
commenters stated that ramps should also have nonslip (nonmetal, 
nonskid) flooring. Several commenters stated that wood shavings, 
sawdust, or sand could be used to provide secure footing.
    There are many ways of providing secure footing and otherwise 
protecting the health and well-being of equines in transit. We do not 
believe it is necessary to specify how this must be done. Many of the 
shippers or owners who transport equines safely and correctly already 
use flooring that provides equines with secure footing. In addition, 
the regulations will require the use of an owner-shipper certificate 
that must describe any preexisting injury the equine has at loading. If 
an equine arrives at a slaughter facility with an injury that was not 
identified on the certificate, such as an injury from a fall due to 
insecure footing, the owner/shipper may be found in violation of the 
regulations and could be fined in accordance with Sec. 88.6. Also, the 
educational program previously mentioned in this document will provide 
owners, shippers, and other stakeholders in the equine slaughtering 
industry with information regarding the safe transport of equines, 
including information on flooring.
    One commenter objected that our proposal did not require 
conveyances to be cleaned of manure and urine. This commenter also 
stated that Sec. 88.3(a)(1) should prohibit use of ropes, wires, or 
chains in animal cargo space because an equine could become entangled 
in or injured by them. This commenter further added that a conveyance 
that transports equines should not have openings in the walls or sides 
of the vehicle lower than 2 feet from the floor of the conveyance.
    Under Sec. 88.3(a)(1), the conveyance used for the commercial 
transportation of equines to slaughtering facilities must be maintained 
in a manner that at all times protects the health and well-being of the 
equines being transported. Maintenance of the conveyance would include 
the removal of manure and urine, when appropriate. Similarly, owners/
shippers must ensure that the cargo space is free of any articles that 
may injure the equines. If a conveyance has openings in the walls or 
sides that cause harm to the equines, the conveyance must either be 
altered or not used for the transport of equines to slaughter. We do 
not believe that a comprehensive list of all articles or configurations 
that could injure an equine is necessary or appropriate.
Segregation of Aggressive Equines
    Proposed Sec. 88.3(a)(2) stated that the animal cargo space of 
conveyances used for the commercial transportation of equines to 
slaughtering facilities must 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.
    Many commenters stated that partitions or individual stalls should 
be required to segregate stallions and other aggressive equines, and 
one of these commenters stated that the partitions should be at least 6 
feet high. Several commenters stated that partitions should be required 
for ``high strung'' equines. Several commenters stated that equines 
should be transported in trailers with separate individual compartments 
or haltered, and several commenters stated that equines could be tied 
to prevent injuries due to fighting if not partitioned. One commenter 
stated that tying equines will prevent rearing. One commenter stated 
that stallions can be muzzled and tied.
    Under Sec. 88.4(a)(4)(ii), stallions and aggressive equines are 
required to be completely segregated from other equines during transit. 
We do not believe that it is necessary to require owner/shippers to 
separate equines into individual compartments. However, because this is 
a performance-based standard, an owner/shipper could use a partition to 
separate aggressive equines from other equines. As to tying equines, we 
agree that tying an equine, in some cases, could prevent it from 
rearing; however, the equines could still kick. Also, haltering and 
tying an equine could pose a danger to the equine if it attempted to 
rear and lost its balance and fell. The equine could be stepped on by 
other equines or injure itself. As to the comment regarding muzzling 
the equines, we assume that this commenter recommended muzzling and 
tying stallions instead of segregating them. Tying up or muzzling an 
equine is not practical for all equines going to slaughter because some 
are not halter-broken. We believe the owner/shipper should have some 
discretion in determining how to achieve segregation of stallions and 
aggressive equines.
Interior Height
    Proposed Sec. 88.3(a)(3) stated that the animal cargo space of 
conveyances used for the commercial transportation of equines to 
slaughtering facilities must have sufficient interior height to allow 
each equine on the conveyance to stand with its head extended to the 
fullest normal postural height.
    Several commenters stated that the performance specifications were 
too vague and could be subject to interpretation. One commenter 
suggested that Sec. 88.3(a)(3) state, ``Have sufficient height to allow 
each equine on the conveyance to stand in a normal relaxed posture with 
its feet on the floor, without its head or any part of its body 
contacting the ceiling of the conveyance. There must be sufficient 
clearance to prevent injury or abrasions to the withers and the top of 
the rump. Horses which arrive at their destination with reddened 
abrasions or fresh injuries on the withers or the top of the rump would 
be in violation.'' One commenter suggested ``* * * extended up to the 
highest normal postural height so that its withers and top of its rump 
will not come into contact with the ceiling, but in any case the 
ceiling must be no less than 7 feet from the floor.'' Many commenters 
stated that the hauling area of vehicles used to transport equines 
should be a minimum of 7 feet high from the highest point

[[Page 63593]]

used by the animals for footing, to the lowest point in the ceiling, 
not having a strut or brace, and no less than 6 feet 6 inches from the 
highest point used by the animals for footing to the lowest point 
having a strut or brace. Some commenters provided ranges of 6 feet 6 
inches to 7 feet for the minimum heights in the hauling area of 
conveyances, and several commenters stated that the height should be 
adequate for equines to stand upright and provide for safe loading and 
unloading. Many commenters stated that the intent of the statute was to 
require a conveyance to have a ceiling height of no less than 6 feet 6 
inches. One commenter stated that Sec. 88.4(a)(3) should state that, if 
equines arrive at their destination with injuries indicative of 
transport, the owner/shipper could be found in violation of the 
regulations.
    We believe that the performance-based standards in this rule 
fulfill the intent of Congress under the statute to help ensure the 
humane movement of equines in commercial transit to slaughtering 
facilities. We have left the owner/shipper with the responsibility of 
ensuring that the design, construction, and maintenance of the 
conveyance used are adequate to ensure that the conveyance can safely 
and humanely transport equines. If an equine arrives at its destination 
with an injury, and the injury was caused by a violation of the 
regulations, the owner/shipper may be assessed civil penalties of up to 
$5,000 per violation for each equine injured. Accountability for 
injuries that occur during transport due to violations is the reason 
the owner-shipper certificate requires the documentation of any 
preexisting injuries that are present prior to loading.
Doors and Ramps
    Proposed Sec. 88.3(a)(4) stated that the animal cargo space of 
conveyances used for the commercial transportation of equines to 
slaughtering facilities must be equipped with doors and ramps of 
sufficient size and location to provide for safe loading and unloading.
    Many commenters stated that we should provide engineering-based 
standards for doors and ramps. One commenter stated that ramps should 
have sides, and another commenter stated that rails should be required. 
One commenter stated that we could require commercial semi-trailers to 
travel with their own external ramps. One commenter stated that 
conveyances should be equipped with doorways and ramps of sufficient 
height and width and location to provide for safe loading and 
unloading, including in an emergency. One commenter suggested that 
conveyances be equipped with ramps and floors which provide nonslip 
footing and doors of sufficient width and height so that a horse that 
is walking off the conveyance will not sustain visible external 
injuries such as abrasions and lacerations. Another commenter stated 
that we should require ramps, rails, and flooring to be maintained in a 
good state of repair; fittings to be designed for quick and easy 
operation and maintained in good working order; ramps and floors to be 
covered with a nonmetal, nonskid surface; and flooring to be free of 
rust and rot and designed to allow for appropriate drainage. This 
commenter further stated that vehicles should be fitted with a ramp not 
to exceed 25 degrees in slope and be of sufficient width and equipped 
with solid sides of sufficient strength and height to prevent equines 
from falling off, and that all portable or adjustable ramps should be 
equipped with anchoring devices. This commenter also stated that 
vehicles must be equipped with an additional exit ramp suitable for use 
in emergencies and that conveyances should be equipped to provide for 
the safest and least stressful loading and unloading. One commenter 
stated that equines should be loaded in as quiet a situation as 
possible and that the area surrounding the ramp should also be nonslip.
    We believe the performance-based standards in this rule provide 
clear guidance on what we mean by humane transport. Owner/shippers will 
have to ensure the safe loading and offloading of equines because, if 
equines sustain injuries while loading, in transit, or while 
offloading, due to violations of the regulations, the owner/shipper may 
be assessed civil penalties as set forth in Sec. 88.6.
Double-Deck Trailers
    Proposed Sec. 88.3(b) stated that 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 
a date 5 years from the date of publication of the final rule. The 
proposal also stated that conveyances with collapsible floors (also 
known as ``floating decks'') must be configured to transport equines on 
one level only.
    Many commenters opposed the continued use of double-deck trailers. 
Many of them stated that the original intent of the statute was to ban 
the use of double-deck trailers for the transport of equines.
    The statute does not prohibit the use of double-deck trailers or 
any other conveyance; however, it requires the commercial transport of 
equines to slaughter by humane methods.
    Many commenters stated that continued use of double-deck trailers 
is inconsistent with providing for the safe and humane transport of 
equines to slaughter. Many commenters stated that our rule is 
inconsistent with the State of New York's ban on the use of double-deck 
trailers for the transport of horses. Several commenters stated that 
APHIS should provide a shorter grace period for the use of double-deck 
trailers, and some of these commenters suggested grace periods ranging 
from 30 days to 2 years. One commenter suggested that, rather than 
allow an across-the-board 5-year ``grandfather clause,'' APHIS should 
require entities to show that they cannot practicably comply with an 
immediate ban. This commenter stated that this requirement would 
require the shipper to demonstrate how soon he or she could switch to a 
single-deck trailer. Many commenters expressed concern that, with the 
5-year exception, a shipper could begin to use a new double-deck 
trailer or a double-deck trailer previously used to transport nonequine 
livestock at any time during the 5-year period. Several commenters 
stated that vehicles designed for horses should be required.
    We believe that the grace period of 5 years is fair and reasonable. 
As stated in the proposal, we arrived at a time period of 5 years after 
discussions with interested parties, including representatives of the 
trucking and equine industries, at two meetings hosted by humane 
organizations. 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.
    We acknowledge that some double-deck trailers are likely to cause 
injuries and trauma to equines; however, we are allowing their 
continued use for the next 5 years in order to minimize economic losses 
to those dependent on the use of double-deck trailers. Nevertheless, we 
will hold owners and shippers responsible for any injuries that occur 
during transport. If equines are injured during transport to 
slaughtering facilities, even if that transport is in double-deck 
trailers still allowed under the regulations, the owner/shipper could 
be in violation of the regulations for each equine that is injured and 
be assessed civil penalties as set forth in Sec. 88.6. Furthermore, 
although our rule may not mirror

[[Page 63594]]

regulations that were promulgated by certain States, this rule will not 
preempt State regulations that have bans on the use of double-deck 
trailers.
    One commenter stated that the regulations are not clear as to 
whether the 5-year grace period means that no violations can be written 
for transporting tall equines in a double-deck trailer for 5 years. As 
stated above, we will hold owners and shippers responsible for any 
injuries that occur during transport if the injuries are due to 
violations of the regulations.
    One commenter stated that the use of double-deck trailers will lead 
to a violation of Sec. 88.4 regarding the observation of equines every 
6 hours and offloading every 28 hours because shippers will have little 
incentive to comply with unloading requirements given the intrinsic 
hazards to handlers and equines.
    In the proposal, we stated that equines frequently sustain injuries 
from being forced up or down the steep inclines of double-deck loading 
ramps. However, if an owner/shipper continues to use a double-deck 
trailer, he or she must take proper precautions to protect equines from 
injury during loading and offloading while using ramps. In addition, 
the owner/shipper must adhere to the prescribed observation period and 
offloading times provided in Sec. 88.4(b)(2) and 88.4(b)(3), 
respectively. The grace period for double-deck trailers is strictly a 
phase-out period for the use of double-deck trailers and does not 
provide protection from the regulations for owners or shippers for 
injuries incurred by equines due to their transport in double-deck 
trailers. Therefore, if equines are injured during transport to 
slaughtering facilities, the owner/shipper may be found in violation of 
the regulations for each equine that is injured and may be assessed 
civil penalties as set forth in Sec. 88.6 even if the transport was 
performed using a double-deck trailer.
    One commenter stated that the regulations are not clear as to 
whether double-deck trailers will be banned as of the date of the final 
rule.
    As of the effective date of this rule, conveyances with collapsible 
floors (also known as ``floating decks'') must be configured to 
transport equines on one level only and will not be prohibited. In 
addition, if a conveyance is converted from two or more stacked levels 
to one level, the conveyance will not be prohibited. Conveyances that 
lack the capability to convert from two or more stacked levels to one 
level may be used until 5 years from the date of publication of this 
rule.
    Many commenters stated that double-deck trailers can jeopardize 
public safety and, therefore, should not be allowed.
    We agree that if drivers operate double-deck trailers in an unsafe 
manner, the trailers can pose a danger to humans, just as any vehicle 
that is operated in an unsafe manner. In Sec. 88.4, paragraph (b) 
states that during transit to the slaughtering facility, the owner/
shipper must drive in a manner to avoid causing injury to the equines. 
This is a performance-based standard that is meant to protect the 
equines from injury caused by poor driving habits and should help 
ensure that double-deck trailers are driven in a safe manner. Our 
educational program regarding the humane transport of equines will 
include safe driving procedures.
    Several commenters stated double-deck trailers should not be 
prohibited after 5 years if they can be altered to accommodate equines 
or converted to single level.
    Double-deck trailers do not provide adequate headroom for equines, 
with the possible exception of foals and yearlings. We do not believe 
that trailers that have two or more permanent levels that are not 
collapsible can be adequately altered to accommodate adult equines, 
especially tall equines. 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. As stated in the proposal, the overpasses on most U.S. 
interstate highways are between 14- and 16-feet high. We are not 
prohibiting, either immediately or after 5 years, the use of double-
deck trailers that can be converted to a single level.
    Several commenters said that if equines are sorted by size, double-
deck trailers could continue to be used. Other commenters stated that 
we should require only that ceilings be of adequate height, which one 
commenter maintained would prohibit only unusually tall equines from 
the double-deck portion of the trailers. One commenter stated that 
Sec. 88.3(b) should require only that conveyances be of sufficient 
interior height to allow each equine to stand with its head extended to 
the fullest normal postural height.
    Again, we do not believe that double-deck trailers provide 
sufficient headroom for horses other than foals and yearlings.
    Two commenters stated that research has shown that stress levels 
and physiological factors are improved on double-deck trailers versus 
single-deck trailers.
    Upon completion of the USDA research, we determined that rubber 
padding used in the single-deck trailers may have caused physiological 
differences between horses transported in double-deck trailers and 
horses transported in single-deck trailers. The rubber padding lined 
the interior walls of the single-deck trailer and limited the 
ventilation capacity within the conveyance. However, this discovery may 
support the use of rubber padding to decrease the exposure of equines 
to extremely low temperatures during their transport in the winter.
    Several commenters opposed the prohibition on double-deck trailers 
because single deck, or ``straight-floor,'' trailers do not hold as 
many horses. Several commenters stated that they now use the double-
deck trailers for horses and other livestock and that going to a single 
deck, or ``straight-floor,'' trailer would not be economical for them 
because they hold fewer animals. Thus, our rule would cause them 
economic hardship. One commenter stated that, since it will still be 
legal to transport livestock other than equines in double-deck 
trailers, and to transport equines to destinations other than 
slaughtering facilities in double-deck trailers, shippers will have no 
economic incentive to trade in double-deck trailers for single-deck 
trailers. The commenter maintained that the rule will, therefore, 
impede the transport of equines to slaughter by reducing the number of 
vehicles available for this transport and increasing the costs of 
transporting equines to slaughter.
    We acknowledge that double-deck trailers can carry more equines and 
other livestock than single-deck trailers. We are allowing the 
continued use of double-deck trailers for the next 5 years in order to 
minimize economic losses to those dependent on the use of double-deck 
trailers. 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. As stated in the proposal, double-deck 
trailers can continue to be used to transport other commodities, 
including produce and livestock other than equines. Also, owners can 
sell their serviceable trailers at fair market value to transporters of 
commodities other than equines.

Section 88.4  Requirements for Transport

Food and Water Prior to Transport
    Proposed Sec. 88.4(a)(1) stated that, prior to the commercial 
transportation of equines to a slaughtering facility, the shipper or 
owner must, for a period of not less than 6 consecutive hours prior to 
the equines being loaded on the

[[Page 63595]]

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.
    Several commenters expressed concern that the proposed rule would 
not require the 6-hour period of feed, water, and rest to occur 
immediately preceding loading for transport. One commenter suggested 
saying ``not more than 6 consecutive hours prior to the equines being 
loaded.'' One commenter suggested inserting the words ``for a period of 
at least 6 consecutive hours immediately. * * *''
    It was our intent in Sec. 88.4(a)(1) to require a 6-hour time 
period immediately preceding the loading of the equines. To make that 
clearer, we have added the word ``immediately'' before the word 
``prior'' in the rule portion of this document.
    Several commenters stated that the proposed provisions for access 
to food and water were too vague. One commenter objected to the lack of 
specific information regarding the quality or quantity of food and 
water to be provided. Two commenters stated that equines should be 
grouped appropriately to ensure that all of them have uninhibited 
access to food and water, and that water should be ad libitum, and one 
other commenter stated that the equines should have unimpeded access. 
One commenter suggested that we require ``free access to potable water 
ad libitum.''
    The rule requires that each equine be provided appropriate food and 
potable water. This means that each equine must have access to the food 
and water. Also, the rule requires ``appropriate'' food. We do not 
believe that it is necessary to prescribe the quality or quantity of 
food that must be provided or to require grouping of animals. We 
believe that the owner/shipper can determine the quality and quantity 
of food and water that should be provided to equines and the best 
methods to ensure that all equines have access to food and water.
    One commenter stated that requiring owners or shippers to provide 
equines with access to feed within 6 hours of transport could be a 
potential problem due to the possibility of impaction. This commenter 
stated that there are anecdotal accounts linking impaction to feed and 
dehydration and that requiring feed may need more study.
    We are aware that impaction can occur under certain circumstances; 
however, impaction has been associated with inadequate intake of water. 
(Impaction is the blockage of a portion of the digestive system formed 
by digested material.) However, we believe that allowing equines access 
to appropriate food and potable water for 6 hours immediately prior to 
loading is unlikely to result in impaction and is essential to ensure 
that the equines do not undergo serious physiological distress during 
transit.
    One commenter stated that the minimum rest period prior to loading 
should be 16 hours with unlimited access to water, good quality hay, 
and shelter, and another commenter stated that water should be provided 
within 12 hours of transport.
    Based on one of the USDA-commissioned research studies, we found 
that equines that were provided water for 6 hours immediately before 
transport did better than those that were provided water for more than 
6 hours.
    One commenter stated that feedlots practice dry lotting, which 
means that equines are not fed immediately prior to slaughter, and the 
regulations are not clear as to whether the practice will be prohibited 
when the rule is finalized. One commenter stated that providing food 
and water is not necessary if equines are going directly to processing 
from the truck.
    The regulations at Sec. 88.4(a)(1) require that equines be provided 
food and water prior to loading for transport to slaughter, and 
Sec. 88.5 requires that equines be given access to food and water after 
being unloaded at the slaughtering facility. As a consequence, dry 
lotting will be prohibited.
    One commenter stated that equines purchased at sale barns may have 
already been deprived of water for quite some time. This commenter 
stated that the regulations are not clear as to how USDA 
representatives will verify that each equine has received the required 
6-hour access to food and water and whether USDA representatives will 
examine equines for evidence that they received preloading services 
upon arrival at the slaughtering facility. One commenter stated that we 
should not trust the owner-shipper statement that claims an equine was 
provided access to appropriate food, potable water, and rest prior to 
loading.
    Owners/shippers are responsible for ensuring that equines have 
access to food, water, and rest for 6 hours immediately prior to 
loading on a conveyance for transport to a slaughtering facility. In 
accordance with Sec. 88.4(a)(3), the owner/shipper must certify on the 
owner-shipper certificate for each equine being transported that the 
equine had access to food, water, and rest for the 6 hours immediately 
prior to loading into the conveyance. In addition, in accordance with 
Sec. 88.5(a)(3), a USDA representative must be given access to the 
equines upon arrival at the slaughtering facility. If the USDA 
representative suspects that the equines are suffering from the effects 
of a lack of food, water, or rest, he or she can question the owner/
shipper regarding the care the equines received prior to and during 
transport. If we determine that an owner/shipper did not comply with 
any requirement, the owner/shipper may be subject to civil penalties of 
up to $5,000 per violation per equine as set forth in Sec. 88.6. In 
addition, if we determine that the owner/shipper falsified the form, 
the owner/shipper could be subject to a fine of not more than $10,000 
or imprisonment for not more than 5 years or both. (The penalty for 
falsification of the owner-shipper certificate is stated on the owner-
shipper certificate (18 U.S.C. 1001).)
USDA Backtag
    Proposed Sec. 88.4(a)(2) stated that, prior to the commercial 
transportation of equines to a slaughtering facility, the shipper or 
owner must apply a USDA backtag to each equine in the shipment.
    One commenter stated that we should remove the requirement for a 
backtag and require each equine to be marked in a manner that provides 
a unique identification of the animal.
    Backtags provide a unique identification for each animal. They are 
easy to apply and easy to read. We believe that requiring their use 
will facilitate identification of equines during loading, unloading, 
and in spaces where they are congregated. If an equine has a unique 
identifying mark such as a brand or tattoo, the owner-shipper must 
record the identifying mark on the owner-shipper certificate along with 
the USDA backtag number.
    One commenter stated that an identification tag should be attached 
to each equine and that the tag should provide the identification of 
the owner/shipper and the license plate number of the conveyance.
    A USDA backtag will be applied to each equine and the number will 
be recorded on the owner-shipper certificate for each equine. The 
owner-shipper certificate will contain the name, address, and telephone 
number of the owner/shipper. In addition, the vehicle license number or 
registration number of the conveyance will be recorded on the owner-
shipper certificate. Because the USDA backtag provides a unique 
identification for each animal, the backtag will allow us to determine 
the identification of the

[[Page 63596]]

owner/shipper should that become necessary.
Owner-Shipper Certificate
    Proposed Sec. 88.4(a)(3) stated that, prior to the commercial 
transportation of equines to a slaughtering facility, the shipper or 
owner must complete and sign an owner-shipper certificate for each 
equine being transported. The proposal also stated that the owner-
shipper certificate for each equine must accompany the equine 
throughout transit to the slaughtering facility and must include 
specified information, including, under Sec. 88.4(a)(3)(v) 
(redesignated as Sec. 88.4(a)(3)(vii) in this final rule), a statement 
of the equine's fitness to travel (a statement 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).
    One commenter maintained that an owner-shipper certificate is 
unnecessary paperwork, because, upon arrival at the slaughtering 
facility, the USDA representative can check the equines and conveyance 
and address any problems noted with the owner of the equines.
    As explained in our proposal, we have several reasons for requiring 
the owner-shipper certificate. They make the owner/shipper responsible 
for ensuring that the equines are fit to travel and have had adequate 
food, water, and rest prior to transport; provide a way for the USDA 
representative at slaughtering facilities to determine whether an 
injury occurred en route; assist in the prosecution of persons found to 
be in violation of the regulations; and facilitate the traceback of any 
stolen equines.
Owner-Shipper Certificate; Who Signs
    Many commenters expressed concern about an owner or shipper 
preparing the certificate for movement. In particular, with respect to 
the statement of fitness for travel, they stated that the owner or 
shipper may have an economic incentive to certify the equines fit to 
travel. Many commenters stated that a professional should certify an 
equine's fitness to travel prior to the transport to ensure the equine 
is in a reasonable state of health at the beginning of the trip. (Some 
of these commenters listed people such as a licensed veterinarian, 
accredited veterinarian, USDA representative, or licensed veterinary 
technician. One commenter added certified humane officers and brand 
inspectors.) Many commenters stated that the fitness to travel should 
be certified by a veterinarian because an owner/shipper could ship a 
lame equine without identifying the injury on the certificate and state 
that injury occurred en route if lameness is noted as the equine is 
unloaded at the slaughtering facility. Several commenters stated that a 
lack of veterinary certification could mean that the USDA 
representative at the slaughtering facility would be unable to 
determine whether the injuries were preexisting or a result of 
transportation. One commenter stated that without medical or veterinary 
knowledge or training, there may be mistakes or inaccurate entries on 
the owner-shipper certificate. One commenter stated that the owner-
shipper certificate requires subjective determinations that cannot be 
made by nonveterinary personnel. Many commenters stated that the 
original intent of the statute was to ban the shipment of sick and 
injured horses by having a veterinarian inspect the horses, rather than 
the owner, who stands to lose money if the horse is not shipped.
    We considered requiring a veterinarian to certify each equine's 
fitness to travel. However, in most cases, because of the lack of a 
client-patient relationship, the veterinarian would not have liability 
coverage. We also determined that use of accredited veterinarians would 
be inappropriate because, as provided in 9 CFR part 161, they perform 
functions required by cooperative State-Federal disease control and 
eradication programs. We also decided, however, that a veterinarian was 
not needed to provide the information we require on the owner-shipper 
certificate. This information could be provided by any person who makes 
careful observation of an equine. However, if an owner/shipper wishes 
to have a veterinarian examine an equine prior to loading the equine 
for slaughter, the owner/shipper may make those arrangements.
    If an equine arrives at a slaughtering facility with an injury that 
should have prevented the equine from being transported (e.g., if the 
equine cannot walk unassisted), the owner/shipper may be found in 
violation of the regulations and could be subject to civil penalties as 
set forth in Sec. 88.6. In addition, if an equine arrives at a 
slaughtering facility with an injury that was not identified on the 
owner-shipper certificate, the USDA representative, who in most cases 
will be a veterinarian, will make a professional judgment as to the 
length of time an equine suffered the lameness or the age of a wound 
and its possible cause. If the USDA representative determines that the 
injury occurred en route or was present prior to loading the equine on 
the conveyance, the owner/shipper may be found in violation of the 
regulations and subject to civil penalties as set forth in Sec. 88.6. 
Any owner/shipper found to have falsified a certificate could also be 
subject to a fine of not more than $10,000 or imprisonment for not more 
than 5 years or both, in accordance with 18 U.S.C. 1001.
    A few commenters stated that allowing owners or shippers to 
complete the owner-shipper certificate is inconsistent with other 
regulations that require an accredited veterinarian to sign a 
certificate or that require a health certificate for the interstate 
movement of equines.
    Other Federal regulations regarding the interstate movement of 
equines, for example, those for equine infectious anemia (9 CFR part 
75), are intended to prevent the interstate spread of communicable 
diseases of equines. This rule does not pertain to a disease control or 
eradication program, and veterinary medical training is not required to 
complete the owner-shipper certificate.
    One commenter asked if there would be a penalty for the owner or 
shipper if he or she is mistaken about an equine's fitness to travel. 
One commenter stated that an owner or shipper should not be found in 
violation of the regulations if he or she makes a mistake on the owner-
shipper certificate or neglects to mark a box, such as the sex of the 
equine.
    If an owner/shipper is unsure about an equine's fitness to travel, 
he or she should seek the proper guidance from a veterinarian or other 
qualified individual. If an owner/shipper makes a mistake on the owner-
shipper certificate or fails to accurately complete the certificate, 
APHIS will attempt to determine whether the mistake or failure to 
accurately complete the certificate was inadvertent or an attempt to 
circumvent the regulations. We understand that, at times, someone who 
fills out a certificate may make a minor error, and we do not intend to 
bring a case against someone solely because he or she made a minor 
clerical error. However, falsification of the owner-shipper certificate 
is a criminal offense that may result in a fine of not more than 
$10,000 or imprisonment for not more than 5 years or both because the 
owner-shipper certificate is a Federal document.
    In the proposal, Sec. 88.4(a)(3)(iii) (redesignated as 
Sec. 88.4(a)(3)(v) in this final rule) required that the owner-shipper 
certificate provide a description of the equine's physical 
characteristics, including such information as sex, coloring, 
distinguishing markings, permanent brands, and electronic means of 
identification.

[[Page 63597]]

    Several commenters stated that, at the point of loading, a USDA 
representative should inspect the equines to verify the description of 
the equine on each owner-shipper certificate.
    Shippers and owners are responsible for the accuracy of the 
information on the owner-shipper certificate for each equine being 
transported. We believe that shippers and owners are capable of 
providing an accurate description of an equine's physical 
characteristics. If we find that an owner/shipper has provided false 
information on an owner-shipper certificate, the owner/shipper may be 
found in violation of the regulations and be assessed civil penalties 
for each equine as provided in Sec. 88.6. In addition, if an owner/
shipper provides false information, the owner/shipper could be subject 
to criminal charges that may result in a fine of not more than $10,000 
or imprisonment for not more than 5 years or both, under 18 U.S.C. 
1001.
Owner-Shipper Certificate; When Signed
    One commenter stated that fitness to travel should not be 
determined more than 48 hours prior to loading.
    We agree that if an equine's fitness to travel is assessed too far 
in advance, there is a chance that an equine that becomes ill or 
injured would not be noted. The fitness to travel should be determined 
during the period prior to the loading of equines into the conveyance. 
Ideally, this determination should be made when equines are provided 
appropriate food, potable water, and rest in accordance with 
Sec. 88.4(a)(1). In this final rule, we have reworded the provision 
concerning an equine's ``fitness to travel'' to clarify that we mean at 
the time of loading (see Sec. 88.4(a)(3)(vii)).
Owner-Shipper Certificate; Identification of Owner, Shipper, Consignee, 
Vehicle
    Under proposed Sec. 88.4(a)(3), the shipper's name and address, 
and, if the shipper is not the owner of the equines, the owner's name 
and address, and a description of the conveyance, including the license 
plate number, must be included on the owner-shipper certificate.
    One commenter stated that we should require the owner-shipper 
certificate to state the ultimate destination (city, State, and name of 
business) as well as any anticipated intermediate stopping points to 
allow USDA and law enforcement personnel to intercept a conveyance en 
route to a slaughtering facility. This commenter also suggested that 
the expected driving route should be filed with a copy of the owner-
shipper certificate at the point of sale and departure.
    We agree that the destination of each equine should be required on 
the owner-shipper certificate and our certificate includes fields for 
that information. We have added a requirement to Sec. 88.4(a)(3) that 
the owner-shipper certificate provide the name, address (street 
address, city, and State), and telephone number of the receiver 
(destination). We do not believe that listing intermediate stopping 
points on the owner-shipper certificate is necessary, however. There 
are only a few slaughtering establishments for equines. Most drivers 
follow a set route to the slaughtering facility to which they transport 
equines and, as a result, USDA representatives or other law enforcement 
officials will be able to locate the conveyance.
    Several commenters stated that it is unnecessary to require a 
separate owner-shipper certificate for each equine in a shipment or to 
require a new owner-shipper certificate for each segment of the trip. 
They stated that, in the case of equines that are unloaded en route, 
information about the equines' fitness to travel and other required 
information could be added to the original certificate if the 
certificate was designed to accommodate more than one trip segment.
    We do not believe that there would be circumstances that an owner/
shipper certificate would unload equines except in an emergency or as 
required in Sec. 88.4(b)(3) for equines that have been on a conveyance 
for 28 hours. Under these circumstances, we would want the owner/
shipper to reassess each equine's fitness to travel prior to reloading 
onto the conveyance.
    We require an owner-shipper certificate for each equine on the 
conveyance because the certificate provides a description of the 
equine. These descriptions can help us trace lost or stolen equines.
    One commenter stated that the owner-shipper certificate should 
include the telephone number of the consignor (shipper) and consignee's 
(receiver/destination) businesses.
    We agree. There is a field for this information on the certificate, 
and we have added that requirement to Sec. 88.4(a)(3).
Owner-Shipper Certificate; Description of the Equine
    As noted earlier, proposed Sec. 88.4(a)(3)(ii) required the owner-
shipper certificate to include a description of the equine's physical 
characteristics, including such information as sex, coloring, 
distinguishing markings, permanent brands, and electronic devices that 
could be used to identify the equines.
    One commenter stated that the owner-shipper certificate should 
include additional identifying information, including the breed or type 
of equine, color combinations, and the location and relative size of 
any markings, brands, tattoos, or scars, as well as the approximate age 
of the equine. The commenter stated that this information could assist 
individuals who are tracing missing or stolen animals. One commenter 
stated that a description of any physical preconditions should be 
included on the owner-shipper certificate. One commenter stated that we 
should require tattoos, especially lip tattoos, to be identified on the 
certificate.
    The owner-shipper certificate contains fields for the owner/shipper 
to indicate the breed and color of the equine. If a specific breed or 
color is not indicated on the certificate, there is a field marked 
``Other'' that should be completed. Also, on the owner-shipper 
certificate, the field for identifying marks specifies ``brands, 
tattoos, and scars.'' In this final rule, Sec. 88.4(a)(3) specifies 
that the owner-shipper certificate should include the breed of the 
equine and any tattoos that are present. We believe that most people 
who are familiar with handling equines will also add any facial or leg 
markings, as appropriate; however, we have added ``facial or leg 
markings'' to the field for ``Identifying Marks'' on the owner-shipper 
certificate. The certificate also provides space for recording any 
preconditions. We are not requiring an age to be indicated because an 
owner/shipper may have to guess the age of the equine. People use the 
teeth of an equine to determine its age, but, in most cases, there are 
many variables such as teeth grinding and diet that can affect the 
accuracy of the assessment.
Who Determines Fitness To Travel
    One commenter stated that studies have shown that the majority of 
injuries to equines do not occur during transport or marketing but 
occur at the point of origin, prior to transport, due to either neglect 
or abuse. Several commenters provided examples of injuries that equines 
exhibited upon their arrival at a slaughtering facility that were 
determined to have occurred at the point of origin. These examples 
included equines that were emaciated, had severe founder, broken legs, 
deformities, etc. Several commenters provided examples of injuries, 
such as illness and broken limbs, that equines

[[Page 63598]]

exhibited at sales or auctions and that were caused by owners. The 
commenters stated that the equines were shipped even though they were 
unfit to travel. One commenter provided examples of people who have a 
history of transporting injured equines, transporting equines without 
water, or transporting equines in conveyances that are unsafe. A number 
of commenters suggested that APHIS should regulate the care of equines 
prior to loading.
    This rule prohibits the commercial transport to slaughter of 
equines that are not found fit to travel under Sec. 88.4(a)(3)(vii). 
This rule also requires that the equines be provided food, water, and 
rest for the 6 hours immediately prior to transport under 
Sec. 88.4(a)(1). We believe that these regulations will prevent most 
animals with point-of-origin injuries from being moved to slaughtering 
facilities via commercial transportation.
Criteria for Fitness To Travel
    As noted above, we proposed to require a statement of the equine's 
fitness to travel on the owner-shipper certificate for each equine. 
Proposed Sec. 88.4(a)(3)(v) (redesignated as paragraph (a)(3)(vii) in 
this final rule) stated that equines must be able to bear weight on all 
four limbs, be able to walk unassisted, have sight in at least one eye, 
be older than 6 months of age, and not be likely to give birth during 
the trip.
    One commenter suggested that we remove the reference to a 
``statement of fitness to travel'' because that language implies that 
we are requiring untrained people to make a subjective determination.
    We agree that, by itself, that phrase is subjective. However, the 
criteria for making that determination are objective. The phrase simply 
states the purpose of the criteria that the owner/shipper must consider 
prior to loading equines on a conveyance.
    Several commenters objected to, or suggested changes to, the 
criteria. Some stated that the proposed regulations would allow the 
shipment of blind animals that are unable to defend themselves, board a 
conveyance, or travel without injury, as well as allow the transport of 
equines that are extremely ill, diseased, injured, incapacitated, or 
not physically fit. One commenter stated that equines that exhibit 
obvious disease, injuries, or similar indications of ill health should 
not be transported unless they are being removed from a facility for 
humane destruction due to the disease or injury as determined by a 
certified veterinarian. One commenter stated that we should prohibit 
the transport of any equine with a known physical problem likely to 
cause collapse and that animals that are in immediate and severe 
distress and determined unfit to travel by an accredited veterinarian 
should be immediately and humanely euthanized. One commenter stated 
that, at minimum, the regulations should require that an equine bear 
weight evenly on all four limbs as determined by a veterinarian.
    In Sec. 88.4, paragraph (a)(3)(vii) prohibits the transport of 
equines that are blind in both eyes. However, equines that are blind in 
one eye can be transported safely and humanely when correctly loaded 
and placed on the conveyance. In addition, paragraph (a)(3)(vii) 
requires that equines be able to bear weight on all four limbs, be able 
to walk unassisted, be older than 6 months of age, and not be likely to 
give birth during the trip. These requirements will, in most cases, 
prohibit the transport of equines that are extremely ill or diseased, 
injured, or incapacitated.
    Two commenters stated that, to ensure that equines are fit for 
travel, the owner-shipper certificate should be modified to state, 
``Horse is able to walk unassisted without physical prodding or marked 
difficulty.'' The commenters stated that equines are often forced to 
walk onto vehicles through the use of whips, hard slaps, kicks, or 
other devices and that ``unassisted'' is not defined and could be 
interpreted to allow the use of whips, hard slaps, etc. One commenter 
stated that an equine that cannot enter a conveyance under its own 
power should not be loaded.
    In Sec. 88.4, paragraph (a)(3)(vii) states that the equine must be 
able to bear weight on all four limbs and be able to walk unassisted. 
Unassisted means that the equine must be capable of climbing a ramp or 
entering a conveyance with ease and under its own power. In addition, 
Sec. 88.4(c) states that the equines must be handled in a manner that 
does not cause unnecessary discomfort, stress, physical harm, or 
trauma.
    One commenter stated that the owner-shipper certificate should use 
language similar to performance-based standards, i.e., require that the 
equine arrive in a condition that meets the requirements of animal 
cruelty laws.
    We believe that a reference to animal cruelty laws would not 
specifically address the needs of equines being transported to 
slaughter. We believe that our requirements are clear.
    Many commenters stated that pregnant mares, late-term pregnant 
mares, foals of varying ages (up to 1 year), and foals less than 600 
pounds should not be transported to slaughtering facilities.
    Equines that are likely to give birth during transport can develop 
serious complications if they foal during transport. In addition, the 
mare's and the foal's well-being could be in danger. Among other 
things, Sec. 88.4(a)(3)(vii) states that an equine cannot be 
transported if it is likely to give birth during the trip. If an owner/
shipper thinks it's possible that a mare is close to delivering, the 
owner/shipper should not put the mare on the conveyance. If an owner/
shipper transports a late-term pregnant mare that gives birth during 
transport, the owner/shipper may be found in violation of the 
regulations. In addition, the owner/shipper could be found to have 
falsified the owner-shipper certificate. We believe that, as long as 
the mare is not likely to give birth during transport, it can be safely 
transported.
    As to the transport of foals to slaughtering facilities, 
Sec. 88.4(a)(3)(vii) prohibits, among other things, the transport of 
equines less than 6 months of age to a slaughter facility. We believe 
that foals older than 6 months of age, including those that weigh less 
than 600 pounds, can be transported safely and humanely if the foals 
are loaded in a proper manner.
    One commenter stated that mares should not be taken from their 
foals and shipped to slaughter if their foals are under 4 months of 
age.
    We do not believe that it is necessary to prohibit the shipment of 
mares that will leave 4-month-old foals on the premises of origin. 
Foals are weaned from 1 to 9 months of age, depending on the standard 
practice of the premises of operation. Weaning is extremely traumatic 
at any age and could be in direct proportion to the time the mare and 
foal spend together. From this standpoint, separating a mare from its 
foal at 4 months may be less stressful for the mare and the foal than 
when the foal is older.
    Several commenters expressed concern that shoed equines, especially 
equines with shoes on their hind feet, could injure other equines and 
said they should not be transported.
    We are aware that equines can be injured when kicked by other 
equines that are wearing shoes. In addition, shoes can be slippery in a 
conveyance if the proper flooring is not provided. As stated 
previously, these regulations are performance-based standards. We 
believe that shoed equines may be transported safely if the owner/
shipper takes proper precautions and, therefore,

[[Page 63599]]

will not prohibit the transport of shoed equines. However, the owner/
shipper must ensure that equines are not injured during transport. Any 
injuries that an equine incurs during transport may result in the 
owner/shipper being found in violation of the regulations and subject 
to civil penalties as provided in Sec. 88.6.
    One commenter stated that the regulations will require owners to 
keep lame and debilitated equines or pay for euthanasia rather than 
sell the equines to slaughter to salvage some value.
    The regulations pertain to those individuals who meet the 
definition of owner/shipper. An individual or entity is exempt from 
these regulations if the individual or entity transports 20 or fewer 
equines to slaughtering facilities or transports equines to 
slaughtering facilities incidental to his or her principal activity of 
production agriculture.
Owner-Shipper Certificate; Identification of Special Handling Needs
    Proposed Sec. 88.4(a)(3)(vi) (redesignated as Sec. 88.4(a)(3)(viii) 
in this final rule) stated that the owner-shipper certificate should 
include 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.
    One commenter stated that special handling needs means taping and 
wiring horses mouths for the entire journey, which are practices that 
should be prohibited. Many commenters stated that taping shut the 
mouths and/or eyes of aggressive horses is inhumane and should be 
prohibited. One added that taping the nostrils of equines should be 
banned. One commenter stated that the meaning of special handling is 
not clear and that we should remove those words from 
Sec. 88.4(a)(3)(vi). This commenter questioned whether a determination 
by APHIS that an equine required special handling would override a 
different opinion expressed on an owner-shipper certificate.
    By special handling needs, we meant that an owner/shipper should 
provide any information that should be taken into account to ensure the 
safe and humane transport of the equine. For example, an owner/shipper 
could use this space to indicate that an equine is blind in one eye, 
which would alert those handling the equine to be cautious when 
handling the horse. We have slightly reworded the provision concerning 
special handling needs in this final rule to clarify what we mean. 
Special handling needs should in no way be interpreted to mean 
instructions for taping or wiring the mouths or taping the eyes or 
nostrils of equines. We do not condone such practices. In fact, 
Sec. 88.4(c) of the regulations requires the handling of equines in a 
manner that does not cause unnecessary discomfort, stress, physical 
harm, or trauma to the equines. The educational program that we are 
developing will explain appropriate techniques for the humane transport 
of equines to slaughtering facilities.
Owner-Shipper Certificate; Date, Time, and Place of Loading
    Proposed Sec. 88.4(a)(3)(vii) (redesignated as Sec. 88.4(a)(3)(ix) 
in this final rule) stated that the shipper or owner must indicate on 
the certificate the date, time, and place the equines were loaded.
    Two commenters stated that the departure time should be noted and 
one commenter stated that a third party should verify the exact time 
and location of loading.
    We believe that the time each equine was loaded onto the conveyance 
is more essential than the time of departure because, based on 
Sec. 88.4 (b)(2), any equine that has been on the conveyance for 28 
consecutive hours, whether the conveyance was in motion or not, must be 
offloaded and provided appropriate food, potable water, and the 
opportunity to rest for 6 consecutive hours.
    We do not believe that a third party should be required to verify 
the time and location of loading. If an owner/shipper falsifies the 
owner-shipper certificate, the falsification may be a criminal offense 
that could result in a fine of not more than $10,000 or imprisonment 
for not more than 5 years or both.
Owner-Shipper Certificate; Other Comments
    One commenter stated that APHIS should require the owner-shipper 
certificate to be legibly filled out in ink or typed and should 
prohibit script writing other than for the signature. One commenter 
stated that the departure time should be written in ink.
    We agree that the owner-shipper certificate must be legibly 
completed. We are amending Sec. 88.4(a)(3) to require the owner/shipper 
to type or legibly provide in ink the information required on the 
owner-shipper certificate. If the owner-shipper certificate is not 
legibly completed, the owner/shipper may be assessed a civil penalty.
    One commenter wanted the certificate to state that the equine was 
loaded under the supervision of the owner/shipper. The commenter also 
requested that the certificate include a statement that the horse's 
condition, gender, and size were taken into account in positioning it 
in the vehicle.
    We do not believe it is necessary to require a statement that the 
equine was loaded under the supervision of the owner/shipper. The 
owner/shipper must complete and sign the owner-shipper certificate, so 
he or she must be present. We do not believe that adding a qualifying 
statement that the equine's condition, gender, and size were taken into 
account when loading is necessary. However, our educational program 
will include instruction on the proper loading and offloading of 
equines, as well as how to position animals so that smaller or thin 
equines or ponies are not harmed by larger equines.
    Another commenter also stated that the owner-shipper certificate 
should include the name and address of the shipper and the owner if the 
owner is not the shipper.
    We do not believe that the owner has to be identified on the 
certificate if he or she is not the shipper. In most cases where the 
owner is not the shipper, the shipper will have purchased the equines 
from an auction/market. The records maintained at most auction/markets 
include the identification and address of the owner of the equines 
should it become necessary to trace the owner.
    One commenter stated that funds should be set aside for a pamphlet 
with clear instructions on the proper handling of equines and 
completion of the owner-shipper certificate.
    The educational program we are developing in conjunction with this 
rule will provide guidelines for the humane transport of equines to 
slaughtering facilities, including instructions for completion of an 
owner-shipper certificate.
Segregation of Stallions and Aggressive Equines
    Proposed Sec. 88.4(a)(4)(ii) required that each stallion and any 
aggressive equines be segregated on the conveyance to prevent them from 
having contact with any other equine on the conveyance.
    Many commenters expressed concern that our requirement for the 
segregation of stallions would encourage point-of-sale castration. They 
recommended that our rule be amended in some way to discourage point-
of-sale castration. One commenter stated that the regulations should 
not allow a stallion to be gelded within 2 weeks preceding transport 
unless it is segregated and accompanied by a signed and dated 
veterinary certificate.
    We do not believe that the regulations need to address point-of-
sale castration. A recovery period of 21 days or more is

[[Page 63600]]

necessary for the site of castration to heal. If an equine arrives at 
slaughter with a fresh and open wound, the equine's value will decline, 
and the owner/shipper will lose money. The healthier an equine is upon 
arrival at the slaughtering facility, the more that equine is worth. In 
addition, stallions retain their aggressive behavior for a period of at 
least 30 days after castration. Therefore, an owner/shipper could not 
circumvent the requirement for segregating a stallion by performing a 
point-of-sale castration because the equine would still be aggressive, 
and aggressive equines must be segregated from other equines in the 
conveyance.
    Many commenters stated that equines should be segregated by size 
and/or sex, several commenters added age, and one commenter added 
height and weight. One commenter stated that all equines 14.2 hands or 
less should be shipped on separate conveyances from larger equines. One 
commenter stated that thin, weak, and old horses should be separated.
    As stated previously, we designed performance-based standards to 
ensure that equines have sufficient space and are protected from injury 
during transport. We do not believe it is necessary to spell out in the 
regulations exactly how this must be accomplished. However, the 
educational program we are developing will show appropriate ways to 
transport equines and will address loading by size. It is worth noting 
that, if an equine is extremely thin, weak, or old, the equine may not 
be fit to travel as required by Sec. 88.4(a)(3)(vii).
    Some commenters stated that we should not require segregation of 
aggressive equines. One commenter stated that we may have gone beyond 
our authority under the statute to require the segregation of 
aggressive equines, along with stallions. Several comments stated that 
it was unclear what we meant by ``aggressive'' or how aggressiveness 
would be determined. One commenter stated that it was not clear who 
would be responsible for determining whether an equine is aggressive. 
Two commenters expressed concern that an equine may not be aggressive 
during observation prior to transport but may become aggressive during 
transport. One commenter suggested that we require segregation of any 
equine ``that has been observed to display aggressiveness toward other 
horses,'' to give the shipper some direction and protection if an 
equine that did not show aggressive behavior becomes aggressive when 
transport begins.
    The statute directs the Secretary to review, among other things, 
the segregation of stallions from other equines and such other issues 
as the Secretary considers appropriate. The main purpose for separating 
stallions (uncastrated male equines that are 1 year of age or older) is 
that stallions are known to be aggressive animals that are easily 
provoked into attacking other equines. In line with protecting equines 
from aggressive behavior by stallions, we believe that any aggressive 
equine should be separated from the other equines as set forth in 
Sec. 88.3(a)(2). In fact, one of the USDA-commissioned studies observed 
that the segregation of stallions did not solve the entire aggression 
problem. The study determined that aggressive geldings and mares had to 
be separated in the same manner as stallions.
    The use of ``aggressive'' in the regulations is in accordance with 
the definition of the term ``aggressive'' found in various 
dictionaries. If an equine attacks another equine for no apparent 
reason or kicks or bites another equine without provocation, for 
example, we believe that equine should be considered aggressive. The 
educational program we are developing will provide guidance concerning 
aggressive equines. However, USDA representatives will be aware that 
some equines that have not exhibited aggressive behavior on previous 
occasions may do so under certain conditions, and they will take into 
consideration that the owner/shipper may not have had prior knowledge 
of the equines' aggressive tendencies.
    Some commenters stated that mares with foals should be segregated 
from other equines during transport. We believe that mares with foals 
may be transported safely with other equines if the owner/shipper takes 
proper precautions and, therefore, we will not require the segregation 
of mares with foal. The educational program that we are developing will 
show owners, shippers, and other stakeholders in the equine 
slaughtering industry appropriate loading procedures and placement of 
equines in the conveyance.
    Several commenters stated that equines with shoes on their hind 
feet should be segregated.
    As stated previously, these regulations are performance-based 
standards. We believe that shoed equines may be transported safely with 
other equines if the owner/shipper takes proper precautions and, 
therefore, we will not require the segregation of shoed equines. 
However, the owner/shipper must ensure that equines are not injured 
during transport. Any injuries that an equine incurs during transport 
may result in the owner/shipper being found in violation of the 
regulations and subject to civil penalties as provided in Sec. 88.6.
Floor Space
    Proposed Sec. 88.4(a)(4)(i) stated that equines on the conveyance 
must be loaded so that each equine has enough floor space to ensure 
that no equine is crowded in a way likely to cause injury or 
discomfort.
    Several commenters stated that this requirement is vague and that 
specifications for floor space should be included in the regulations. 
One commenter stated that the number of equines carried should be equal 
to the length of the compartment in feet divided by 4. One commenter 
suggested a standard of 1.75m\2\/equine or approximately 18 square feet 
per equine. Some commenters provided further suggestions based on 
transit time, and/or the number, ages, and size of the equines. One 
commenter stated that a numerical density specification should be 
provided and should be based on scientific studies and practical 
experience. One commenter stated that we should determine an average 
numerical figure that is safe and acceptable for each vehicle type 
based on research and require each vehicle to have a permanent tag 
affixed that specifies the range or the number of equines/ponies that 
are acceptable to be transported in the vehicle at one time. One 
commenter stated that we should determine the appropriate density of 
equines for each vehicle-type, based on studies conducted by Texas A&M 
and Colorado State University. Several commenters stated that horse 
industry standard for trailers is 8 to 15 horses and not the 40 to 45 
that would be permitted for slaughter transport. One commenter 
suggested a system in which equines may be transported at higher 
densities during shorter trips, but at lower densities for longer 
trips. This commenter stated that his studies and experience indicate 
that slaughter-type horses that are transported for 28 hours should be 
transported at a much lower density than the industry average (13 to 14 
square feet per horse).
    We were directed by Congress to draft performance-based regulations 
wherever possible. Owner/shippers will have to load equines in a manner 
that will avoid injury to the equines. Overcrowding in a conveyance can 
cause animals to bruise and sustain other injuries. This could result 
in the owner/shipper being found in violation of the regulations and 
being assessed a civil penalty. Owner/shippers also have some market-
based

[[Page 63601]]

incentive to prevent injury to equines during transport because bruised 
carcasses command lower market values. Our educational program will 
help owner/shippers comply with the performance-based standards. The 
educational program will address many issues, including loading density 
and floor space. The educational program will be directed towards 
owners, shippers, and other stakeholders in the equine slaughtering 
industry.
Observation of Equines During Transport
    Proposed Sec. 88.4(b)(2) stated that, during transit to the 
slaughtering facility, the shipper must 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 
the regulations are being followed. Proposed Sec. 88.4(b)(2) also 
stated that veterinary assistance must be provided as soon as possible 
for any equines in obvious physical distress.
    Many commenters stated that observation of the equines every 6 
hours is insufficient. Some of these commenters provided observation 
ranges of every 2, 3, and 4 hours. One commenter stated that equines 
should be observed the first hour and every 6 hours after. One 
commenter stated that equines should be observed each time the 
conveyance stops for a break or refueling, but not less than once every 
6 hours, and that the equines must be allowed to rest for no less than 
30 minutes while the vehicle remains stopped. One commenter stated that 
the phrase ``not less than once every 6 hours'' is misleading and that 
we should replace it with the phrase ``at least once every 6 hours.''
    We believe that the requirement conveys the meaning that the 
equines are to be observed once every 6 hours or more often. We 
provided a maximum time of every 6 hours because we believe that this 
is the maximum amount of time that equines should go without 
observation to ensure that none have fallen or have become otherwise 
physically distressed en route. However, Sec. 88.4(b)(2) requires 
shippers or owners to observe the equines as frequently as 
circumstances allow during transport, which would include during breaks 
from driving and refueling.
    One commenter stated that we should clarify whether adequate 
observation includes stopping the truck and climbing on the trailer in 
any weather and lighting conditions to examine the equines.
    Observation of the equines by the owner/shipper means that the 
owner/shipper must stop the conveyance and observe each equine at least 
once every 6 hours. The owner/shipper has the responsibility of 
locating an area where observation of the equines can be performed 
safely and completely.
    One commenter stated that Sec. 88.4(b)(2) should require veterinary 
assistance as soon as ``reasonably'' possible.
    We believe that Sec. 88.4(b)(2), as worded, conveys an appropriate 
sense of urgency and does not require an owner/shipper to do anything 
unreasonable. Veterinary assistance must be provided as soon as 
possible to ensure the safe and humane transport of equines in the 
conveyance. Also, in this final rule, Sec. 88.4(b)(2) requires owner/
shippers to obtain the services of an equine veterinarian for 
veterinary assistance. We believe that an equine veterinarian will be 
better equipped than most other veterinarians to handle equines. The 
educational program we are developing in conjunction with this 
regulation will provide participants with a list of equine 
veterinarians within the United States and their telephone numbers.
    One commenter stated that the regulations should specify how 
equines that die in transit should be handled.
    Our regulations are intended to ensure that equines transported to 
slaughtering facilities are fit to travel and, therefore, not likely to 
die in transit. However, in this final rule, Sec. 88.4(b)(2) states 
that if an equine dies in transit, the driver of the conveyance must 
contact the nearest APHIS office as soon as possible and allow an APHIS 
veterinarian to examine the equine, and, if an APHIS veterinarian is 
not available, the owner/shipper must contact an equine veterinarian.
Offloading of Equines After 28 Hours
    Proposed Sec. 88.4(b)(3) stated that during transit to the 
slaughtering facility, the shipper must 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. In addition, proposed 
Sec. 88.4(b)(3) stated that, if such offloading is required en route to 
the slaughtering facility, the shipper must prepare another owner-
shipper certificate and record the date, time, and location where the 
offloading occurred. Both owner-shipper certificates would then need to 
accompany the equine to the slaughtering facility. In this final rule, 
the requirement for completing a new certificate if equines are 
unloaded is at Sec. 88.4(a)(4).
    Many commenters opposed allowing 28 hours without water, and many 
opposed allowing the transport of horses for 28 hours without food, 
water, or rest. Most of these commenters stated that equines must be 
provided water, food, and/or rest, and unloaded at times ranging from 
every 4 to 24 hours or reasonable intervals, and some added that the 
time for water, food, and rest should be whether the vehicle is in 
transit or stationary. Many commenters stated that equines should not 
be without water, and some added food, for time periods ranging 3 to 12 
hours, and some added that water could be provided during the 
observation period. Several commenters stated that studies have shown 
that equines suffer serious and traumatic health problems from travel 
for periods under 28 hours, and several commenters referenced 24 hours. 
One commenter stated that the amount of time that equines are deprived 
of water, food, and rest should be reviewed by a qualified veterinarian 
to establish that fewer hours should be specified. Several commenters 
stated that the standard of 28 hours was determined primarily using 
young, healthy horses, and that equines going to slaughter are not 
young or healthy. Several commenters stated that the USDA-commissioned 
studies did not take into account such variables as the age and 
condition of the equines, the density of equines on the truck, and 
temperature or other conditions. Some commenters, apparently thinking 
the 6-hour period of food, water, and rest prior to loading could occur 
at any time prior to loading, expressed concern that equines could be 
without water for more than 28 hours if transport took 28 hours. 
Several commenters stated that we should recommend a rest period of 8 
hours that is not included in the transit length.
    In accordance with Sec. 88.4(a)(1), an owner/shipper must provide 
equines appropriate food, potable water, and an opportunity to rest for 
a period of not less than 6 consecutive hours immediately prior to the 
equines being loaded on the conveyance. Therefore, 28 hours would be 
the longest an equine could go without being offered food and water 
during transport to a slaughtering facility in the United States.
    We based the requirements in Sec. 88.4(b)(3) on the conclusions of 
the USDA-commissioned research, which was performed by veterinarians. 
In addition, various times that horses could be without water were 
reviewed by a panel of qualified veterinarians who established that the 
research was valid. At least half of the USDA-commissioned research 
involved

[[Page 63602]]

slaughter horses for comparison. In fact, one of the studies involved 
306 horses that ranged from 1 to 30 years of age, and 33 percent of the 
horses were 16 years of age or older.
    Further, some of the research simulated transport to slaughter 
under varying situations. For instance, straight-deck trucks were 
divided into compartments with four levels of density, and the equines 
were transported during the hottest part of the day during the summer. 
The research also showed that frequent loading and unloading caused 
more distress to equines than allowing the equines to remain on the 
conveyance.
    One commenter stated that the USDA-commissioned research performed 
in 1998 by Drs. Carolyn Stull, Ted Friend, and Temple Grandin was 
developed to deny that water, food, and rest are basic needs. Several 
commenters stated that the research was biased and flawed and that some 
of the researchers contradicted their findings in previously published 
studies and findings. One commenter cited a study by Dr. Stull that 
recommended water every 6 to 8 hours, if possible. Many commenters 
stated that the USDA-commissioned study performed by Dr. Stull 
concluded that trips longer than 27 hours showed effects in equines 
that were considered to be reliable stress indices and that injuries 
increased with travel times over 27 hours. These commenters added that 
Dr. Stull performed a study that concluded that transportation in hot, 
humid conditions should attempt to minimize thermal stress by 
frequently offering (every 4 to 6 hours) water to horses and limiting 
the duration of the trip. These commenters and several others stated 
that Dr. Friend performed a study that concluded that tame horses in 
good condition could be transported for up to 24 hours before 
dehydration and fatigue became severe; however, they stated that the 
study was terminated after 24 hours because 3 of the 30 horses were 
deemed unable to continue and concluded that if horses must be 
transported more than 24 hours, the truck must be equipped with a 
watering device. One commenter stated that the study performed by Dr. 
Stull was biased because she used horses in the study that were 
identified by cooperating brokers and transport drivers who had an 
interest in the outcome of the study. Another commenter also stated 
that people associated with the auction facility and slaughtering 
facility used for Dr. Grandin's study were made aware of the study 
ahead of time.
    We commissioned the performance of research to identify appropriate 
timeframes in which food, water, and rest should be provided to ensure 
that the last trip for equines being transported to slaughter was a 
tolerable one. The research was performed to address the transport of 
equines to slaughtering facilities. Our results were based on the most 
recent research, which may have shown different results than previous 
research by the same researchers. We based the requirements for food, 
water, and rest on the conclusions of the research. The study performed 
by Dr. Stull that was cited by the commenters regarding the 
transportation of equines in hot and humid conditions was performed to 
determine the optimal conditions for the transport of performance 
horses.
    It is true that Dr. Stull's USDA-commissioned research study 
concluded that trips longer than 27 hours could cause distress to 
equines; however, as stated in the proposal, we believe that 28 hours 
will allow for realistic travel times from most points of the United 
States to equine slaughtering facilities without the equines undergoing 
serious physiological distress. In most cases, we believe equines will 
be transported from the point of loading to the slaughtering facility 
within 24 hours.
    It is true that the equines used in Dr. Stull's study were 
identified by cooperating brokers and transport drivers. Dr. Stull's 
study required a large number of equines that were destined for 
transport to slaughtering facilities. We believe that the 
identification of equines by brokers and drivers did not have a 
significant impact on the results of the study.
    The nature of the research performed by Dr. Grandin required her to 
have access to the equines for examination. The premises were 
privately-owned and, as a consequence, there had to be a certain level 
of cooperation with the owners or management of the premises. However, 
we do not believe that the level of cooperation affected the results of 
the study.
    Several commenters suggested that providing water to equines en 
route, via an onboard watering system, might be preferable to unloading 
equines after 28 hours because unloading and loading equines from a 
conveyance causes stress. One commenter suggested that loading equines 
at a reduced density and watering enroute should be an alternative to 
unloading. One commenter stated that each conveyance should contain at 
least 10 gallons of water for every 20 equines for emergencies, in 
addition to the equine's regular water supply.
    We believe that unloading after 28 hours to provided food, water, 
and rest is appropriate based on the findings of the USDA-commissioned 
research.
    Several commenters stated that APHIS is not following the findings 
of the USDA-commissioned research because APHIS indicated that equines 
do not experience serious physiological distress for 30 hours without 
water if they have had access to water during the 6-hour period prior 
to deprivation.
    It is true that we stated in the proposed rule that the USDA-
commissioned studies showed that equines that had access to water in 
the 6-hour period before deprivation occurred did not experience 
serious physiological distress for up to 30 hours without further 
access to water. However, we believe that a 28-hour maximum allowable 
timeframe for deprivation of food, water, and rest during transport to 
slaughter will allow for realistic travel times from most points of the 
United States to the equine slaughtering facilities and ensure that the 
equines will not undergo serious physiological distress.
    One commenter stated that adequate water, ventilation, and feed 
must be provided because equines are often sold by the pound, and loss 
of weight during transport reduces revenue for the seller.
    In accordance with Sec. 88.4(b)(3), the owner/shipper must 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. 
However, the owner/shipper may provide appropriate food, potable water, 
and rest to equines at any point during transit that it is safe to do 
so.
    One commenter stated that we should recommend the offloading of 
equines every 10 hours when drivers are required to stop and rest 
because drivers are not allowed to drive for 28 hours straight. One 
commenter stated that equines should be provided water, food, and rest 
at each rest stop.
    It is not clear whether the commenter was referring to each rest 
area long the interstate or each time the driver stops for a rest. In 
some areas, rest stops can be with 30 to 60 minutes of each other, 
which could be an unnecessary burden on the owner/shipper. Further, we 
do not believe that it is necessary to require the owner/shipper to 
provide the equines with food, potable water, and rest at every rest 
stop for the driver. Drivers must stop periodically for personal and 
safety reasons. The timing of these stops has nothing to do with the 
well-being of the equines.

[[Page 63603]]

    One commenter stated that equines should be offloaded at weigh and 
check stations when crossing a State or Federal boundary so that the 
equines can be inspected for injuries because visibility is better 
compared to observing the equines while they are in the conveyance.
    Offloading equines at weigh and check stations could be a safety 
hazard for the equines due to the presence of other commercial vehicles 
that are not involved with the transport of equines. In addition, weigh 
and check stations would have to be equipped with facilities that could 
provide food, water, and containment of equines.
    One commenter stated that the regulations are not clear whether the 
28-hour rule includes the amount of time an APHIS official may spend 
examining the equines. One commenter stated that Sec. 88.4(b)(3) should 
exempt time required for inspection by USDA, State or Federal law 
enforcement officials, or any other delay in the direct transport of 
the equines due to governmental or law enforcement interference with 
movement of the conveyance.
    Section 88.4, paragraph (b)(3), requires any equine that has been 
on a conveyance for 28 consecutive hours to be offloaded and provided 
appropriate food, potable water, and the opportunity to rest for at 
least 6 consecutive hours. We do not believe that amending 
Sec. 88.4(b)(3) to address delays due to law enforcement officials is 
appropriate. Equines that have been on a conveyance for 28 hours need 
to be offloaded and provided food, rest, and, most importantly, potable 
water, regardless of the reason that they were on the conveyance for 28 
hours.
Handling of Equines
    Proposed Sec. 88.4(c) required the handling of all equines in 
commercial transportation to a slaughtering facility to be done as 
expeditiously and carefully as possible in a manner that does not cause 
unnecessary discomfort, stress, physical harm, or trauma. Proposed 
Sec. 88.4(c) also prohibited use of electric prods 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.
    Many commenters stated that any use of electric prods should be 
banned or prohibited, and some of these commenters stated that other 
equipment is readily available if human safety is threatened. One 
commenter stated that we should provide clarification as to who 
determines when human safety is threatened. One commenter stated that 
use of an electric prod can elicit unpredictable movement in horses. 
One commenter stated that the loading of equines should be monitored to 
ensure that prods are not used.
    One of the purposes of the regulations is to ensure that equines 
are transported without unnecessary discomfort, stress, physical harm, 
or trauma. Therefore, the regulations prohibit the use of electric 
prods, except in cases when human safety is threatened. We limited the 
use of electric prods to situations in which human safety is threatened 
to decrease the potential that prods could be used in abusive 
situations. We agree that there may be other equipment that can be 
used; however, they may not elicit a response quickly enough in a life 
or death situation. The owner/shipper is the entity who must make the 
determination of whether human safety is threatened. A USDA 
representative cannot be present in all areas that equines may be 
loaded for transport to slaughtering facilities; however, if an owner/
shipper uses an electric prod when human safety is not threatened and 
evidence of that abuse is found, that person may be found in violation 
of the regulations.
    Many commenters stated that metal pipes and sharp or pointed 
objects capable of piercing the skin should be banned. Many commenters 
stated that no implement, device, contrivance, mechanism, apparatus, 
appliance, contraption, instrument, tool, or utensil should be allowed 
to be used, including for the control or restraint of the equines, that 
was not expressly and specifically designed for use on equines and 
generally recognized as such. In addition, several commenters stated 
that only restraints considered humane should be used. Two commenters 
stated that, in addition to electric prods, whips or any other object 
that could cause injury or pain should be prohibited except when human 
safety is directly threatened by an equine.
    We cannot provide a list of all implements that have been or could 
be used on equines because of the number of possibilities; however, the 
use of any implement that does not provide equines with the care 
described in Sec. 88.4(c) should not be used and could be a violation 
of the regulations.
Examination of Equines at Any Point
    Proposed Sec. 88.4(d) stated 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 required by Sec. 88.4(a)(3).
    Several commenters stated that Sec. 88.4(d) should state ``must'' 
rather than ``may.''
    We use ``may'' in Sec. 88.4(d) because a USDA representative may 
not be able to examine all equines, inspect all conveyances, or review 
all of the owner-shipper certificates. However, USDA representatives 
are authorized by Sec. 88.4(d) to inspect the equines and conveyances 
as the need arises, and USDA representatives will collect all of the 
owner-shipper certificates at slaughtering facilities.
    One commenter stated that Sec. 88.4(d) should require a USDA 
representative, his or her designee, a weigh station or agricultural 
check point employee, or other law enforcement personnel to enforce the 
requirements of the regulations during transit as well as upon arrival 
at the slaughter facility. One commenter stated that we should clarify 
whether law enforcement officials can perform duties such as inspect 
vehicles, conduct investigations, examine the animals and seize and 
impound the animals, if necessary. Some commenters stated that there 
should be a provision that allows law enforcement officials, State or 
Federal employees, or inspectors to ensure an owner or shipper's 
compliance with the regulations.
    In a State that has its own regulations regarding the transport of 
equines to slaughter, that State's police or law enforcement personnel 
can enforce the State's regulations. The statute does not provide for 
Federal enforcement actions by State and local law enforcement 
personnel in State and local courts.
    One commenter stated that equines should be shipped directly and 
expeditiously from the point of loading to the slaughtering facility 
without stopping between the points for USDA representatives to conduct 
examinations, which the commenter stated could be potentially harmful 
and cause stress to the animals. This commenter stated that the manner 
at which the equines arrive at the slaughtering facility should be 
sufficient.
    We believe that we need to be able to check conveyances, equines, 
and paperwork if we have any concerns that equines may be being 
transported in violation of the regulations. Every transport will not 
be subject to such an examination; however, if an examination has to be 
conducted, the USDA representative will consider the welfare of the 
equines in the conveyance and will not take more time than necessary to 
perform his or her duties.

[[Page 63604]]

Direction to the Owner/Shipper To Take Action
    Proposed Sec. 88.4(e) stated that, 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. Proposed Sec. 88.4(e) also 
stated that, 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.
    Several commenters stated that Sec. 88.4(e) should state that a 
USDA representative ``must,'' ``shall,'' or ``should'' direct the 
shipper to take appropriate actions, and that such actions ``must'' 
include securing the services of a veterinary professional.
    We use ``may'' in Sec. 88.4(e) because this provision authorizes a 
USDA representative to direct the owner/shipper to take appropriate 
actions to alleviate the suffering of any equine based on the 
representative's assessment of the equine's condition. ``Must'' would 
imply that such direction will be necessary in all cases. Similarly, we 
say that such action ``could'' include securing the services of a 
veterinary professional because those services will not always be 
necessary.
    One commenter stated that Sec. 88.4(e) should state that the 
services of a veterinary professional will be secured if ``reasonably'' 
available.
    We believe that if a USDA representative directs the owner/shipper, 
as provided in Sec. 88.4(e), to secure the services of a veterinary 
professional to treat an equine, the veterinary professional should be 
secured as soon as possible.
    One commenter stated that Sec. 88.4(e) should refer to a USDA 
representative ``or his or her designee.'' In addition, this commenter 
stated that the veterinary professional should be an equine veterinary 
professional.
    We do not believe that Sec. 88.4(e) needs to indicate ``his or her 
designee'' because we define USDA representative as any USDA employee 
authorized by the Deputy Administrator, Veterinary Services, APHIS, to 
enforce the regulations. However, we agree with the commenter that 
Sec. 88.4(e) should specify that the veterinary professional must be an 
equine veterinarian. We have amended Sec. 88.4(e) to require the 
veterinary professional to be an equine veterinarian.
Retention of the Owner-Shipper Certificate for 1 Year
    Proposed Sec. 88.4(f) stated that the individual or other entity 
who signs the owner-shipper certificate must maintain a copy of the 
owner-shipper certificate for 1 year following the date of signature.
    Several commenters stated that the owner or shipper should retain a 
copy of the owner-shipper certificate for a minimum of 2 years, and 
some of these commenters stated that we should retain a copy so that 
information is readily accessible to those who are attempting to trace 
lost or stolen equines. One commenter stated that there should be 
provisions for law enforcement and State agencies to have access to the 
owner-shipper certificates for identifying and locating stolen or 
missing horses.
    We believe that requiring a 1-year retention of the owner-shipper 
certificates is adequate. If someone is attempting to trace a lost or 
stolen equine, the investigation will more than likely take place 
within a few months of the disappearance of the equine. However, to 
improve the capability of tracing lost or stolen equines, APHIS plans 
to develop a database of the information provided on the owner-shipper 
certificates. If necessary, information from the database could be 
supplied to law enforcement or State agencies, when requested.

Section 88.5  Requirements at a Slaughtering Facility

Access to Food and Water After Unloading
    Proposed Sec. 88.5(a)(1) stated that, upon arrival at a 
slaughtering facility, the shipper must ensure that each equine has 
access to appropriate food and potable water after being offloaded.
    Two commenters stated that the shipper should not be responsible 
for providing food and water to equines at the slaughtering facility. 
Both commenters stated that the slaughtering facility should be the 
responsible party. One of these commenters stated that the shipper 
would not know the conditions at destination and, in most cases, would 
not be the owner of the equines.
    We believe that the requirement in Sec. 88.5(a)(1) will ensure that 
the owner/shipper notifies the proper officials of his or her arrival 
at the slaughtering facility, and that the equines are offloaded into 
an area where the slaughtering facility can provide food and potable 
water.
    One commenter stated that Sec. 88.5(a)(1) should state that the 
management of the slaughtering facility must provide consent to the 
shipper to provide each equine access to appropriate potable water 
after being offloaded, but not food.
    We believe that equines should be allowed access to both food and 
potable water to maintain their well-being after being transported 
without access to food and water, sometimes over great distances. The 
requirement in Sec. 88.5(a)(1) is to ensure that the owner/shipper 
notifies the proper officials of his or her arrival at the slaughtering 
facility. We believe that most shippers and owners will appropriately 
communicate with the proper personnel at the slaughtering facility 
without the inclusion of the word ``consent'' in the regulation.
    One commenter stated that equines should be provided water every 4-
6 hours where they are housed before slaughter.
    The statute only allows us to regulate the transport of equines to 
a slaughtering facility. Once the equines arrive at the slaughtering 
facility and are provided food, potable water after being offloaded in 
accordance with Sec. 88.5(a)(1), the equines are subject to the 
facility's feed and water schedule.
    One commenter stated that Sec. 88.5(a) should require the arrival 
of a conveyance during regular business hours of the slaughtering 
facility and to require the shipper to ``immediately'' abide by the 
requirements set forth in Sec. 88.5(a).
    We do not believe that requiring shipments of equines to arrive at 
slaughtering facilities during normal business hours would always be in 
the best interests of the equines. It could, for instance, result in 
the equines being kept on the conveyance for a longer time than might 
otherwise be necessary.
    We do not believe that adding ``immediately'' is necessary because, 
in most cases, the owner/shipper will offload the equines and discharge 
his or her responsibilities as soon as possible after arrival.
Access to the Equines
    Proposed Sec. 88.5(a)(3) stated that, upon arrival at a 
slaughtering facility, the shipper must allow a USDA representative 
access to the equines for the purpose of examination.
    Several commenters pointed out that USDA representatives are not 
available at slaughtering facilities on all days of the week or at all 
hours. One commenter stated that Sec. 88.5(a)(3) should state that 
management of the slaughtering facility must provide consent to a USDA 
representative to have access to the equines for the purpose of 
examination. The commenter also stated that

[[Page 63605]]

Sec. 88.5(a)(3) should state that the absence or delay in arrival of 
the USDA representative will not prohibit the slaughtering facility 
from proceeding with the slaughter of the equines during its normal 
course of business. One commenter stated that if a USDA representative 
is not available prior to slaughter, an examination of carcasses for 
bruising or abrasions during inspection could be used to assess 
injuries incurred during transport to the slaughtering facility. One 
commenter asked who a USDA representative is. One commenter asked if 
full-time veterinarians would be assigned to the slaughtering 
facilities to enforce the regulations.
    A USDA representative will be available during normal business 
hours of the slaughtering facility to examine the equines. This 
requirement, therefore, should not cause any significant delays in 
slaughter operations. Also, most equines are delivered during the hours 
of operation of the slaughtering facility. Regardless of when the 
equines arrive, we believe a USDA representative must be given access 
to the equines prior to slaughter for the purpose of examination.
    A USDA representative may be any employee of the USDA who is 
authorized by the Deputy Administrator, Veterinary Services, APHIS, to 
enforce the regulations. The employee could be an APHIS veterinarian, a 
Food Safety and Inspection Service (FSIS) employee, or any other USDA 
employee so authorized.
    One commenter stated that Sec. 88.5(a)(3) should require equines to 
be inspected when they reach their destination.
    In accordance with Sec. 88.5(a)(3), a USDA representative must be 
given access to the equines for the purpose of examination; however, 
the USDA representative will use his or her discretion in determining 
which equines to inspect and the extent of any examination.
Access to the Animal Cargo Area
    Proposed Sec. 88.5(a)(4) stated that, upon arrival at a 
slaughtering facility, the shipper must allow a USDA representative 
access to the animal cargo area of the conveyance for the purpose of 
inspection.
    One commenter stated that Sec. 88.5(a)(4) should require inspection 
of the animal cargo area.
    Inspection of the animal cargo area may not be necessary in all 
cases. This requirement in Sec. 88.5(a)(4) alerts owner/shippers that 
the animal cargo area of their conveyances may be inspected by a USDA 
representative.
Owner/Shipper Remaining on Premises
    Proposed Sec. 88.5(b) stated that the shipper must not leave the 
premises of a slaughtering facility until the equines have been 
examined by a USDA representative.
    One commenter stated that equine slaughtering facilities should not 
have their slaughter schedules dictated by APHIS. This commenter stated 
that Sec. 88.5(b) should allow the shipper to leave the premises of the 
slaughtering facility if a USDA representative does not appear to 
examine the equines within 3 hours after they are offloaded from the 
conveyance. One commenter stated that drivers should not have to wait 
for the USDA representative and should be allowed to leave the premises 
if an employee of the slaughtering facility is there to allow the USDA 
representative access to the equines.
    A USDA representative will be available for the examination of the 
equines and conveyances during normal business hours, and we believe it 
is important for the owner/shipper to be present during these 
activities. However, we agree that a driver who arrives at a 
slaughtering facility outside of normal business hours should be able 
to leave the premises to eat or rest. Therefore, Sec. 88.5(b) of this 
final rule states that the owner/shipper must not leave the premises of 
a slaughtering facility until the equines have been examined by a USDA 
representative if the owner/shipper arrives during normal business 
hours; however, if the owner/shipper arrives outside of normal business 
hours, the owner/shipper may leave the premises but must return to the 
premises of the slaughtering facility to meet the USDA representative 
upon his or her arrival.
    One commenter stated that Sec. 88.5(a) should provide that all 
equines that are nonambulatory upon arrival should be euthanized on the 
vehicle after all other equines have been unloaded and that euthanasia 
should be performed by a licensed and accredited veterinarian in an 
approved manner. The commenter stated further that if arrival of a 
veterinarian would cause time delays and suffering to the equine, the 
regulations should provide that euthanasia could be performed by a 
trained individual using approved methods. In addition, the commenter 
maintained that the regulations should provide that seriously injured 
or downed animals may not be dragged, hoisted, thrown, or left alone 
without medical intervention.
    Any equine that is seriously injured or nonambulatory upon arrival 
must be provided veterinary assistance and may not be mistreated or 
left unattended. A USDA representative will be available to examine the 
equines upon their arrival at the slaughtering facility during normal 
business hours. In most cases, the USDA representative will be a 
veterinarian; therefore, the USDA representative will be able to 
perform euthanasia, if necessary. If an equine is nonambulatory, is 
seriously injured, or is otherwise in obvious physical distress upon 
arrival and a USDA representative is not available (i.e., because of 
arrival of the equines at the slaughtering facility outside of normal 
business hours), Sec. 88.4(b)(2) requires the owner/shipper to obtain 
veterinary assistance as soon as possible. We agree that equines that 
become nonambulatory should be euthanized. In this final rule, 
Sec. 88.4(b)(2) provides that equines that become nonambulatory en 
route to a slaughtering facility must be euthanized by an equine 
veterinarian. Since we are requiring that euthanasia be performed by an 
equine veterinarian, we do not believe that it is necessary to add that 
euthanasia be performed in an approved manner.
Transport of Equines Outside the United States
    Proposed Sec. 88.5(c) stated that any shipper transporting equines 
to slaughtering facilities outside the United States must present the 
owner-shipper certificate to USDA representatives at the border.
    One commenter stated that Sec. 88.5(c) does not state that a USDA 
inspector will inspect the equines to determine whether they are fit to 
travel or whether the description on the owner-shipper certificate 
matches the equines in the conveyance.
    A USDA representative at the border will inspect conveyances 
carrying equines destined for slaughter outside the United States when 
he or she deems it necessary.

Section 88.6  Violations and Penalties

    Proposed Sec. 88.6(a) stated that the Secretary is authorized to 
assess civil penalties of up to $5,000 per violation of any of the 
regulations in part 88, and proposed Sec. 88.6(b) stated that each 
equine transported in violation of the regulations would be considered 
a separate violation.
    Many commenters stated that penalties for violation of the 
regulations should be criminal instead of civil; otherwise, law 
enforcement personnel will not be able to enforce them. Some commenters 
stated that laws must be

[[Page 63606]]

enforced at auctions and feedlots, prior to loading. One commenter 
stated that Sec. 88.6 should provide that a person who knowingly 
violates the regulations shall, upon conviction, be subject to 
imprisonment for not more than 1 year or a fine of $5,000, or both, and 
on conviction of a second or subsequent offense, the person shall be 
subject to imprisonment for not more than 3 years or to a fine of 
$8,000, or both.
    The statute does not allow the Secretary to establish criminal 
penalties for violations of the regulations. The statute allows the 
Secretary to establish and enforce appropriate and effective civil 
penalties only. As previously explained, the regulations pertain to 
equines transported to slaughter from any point of loading, including 
auctions/markets and feedlots.
    One commenter stated that shippers should be subject to penalties 
as prescribed by county, State, or Federal statutes or regulations.
    The regulations do not prohibit counties or States from applying 
penalties in accordance with their regulations if an owner/shipper 
violates their regulations even if the amount of the penalty is more 
than that provided in Sec. 88.6(a).
    One commenter stated that civil penalties of up to $10,000 rather 
than $5,000 should be assessed. One commenter stated that if a 
conveyance carrying a load of equines is found to have a sharp 
protrusion, a fine of $5,000 per equine in the conveyance seems 
excessive, especially if an equine that is being transported caused the 
protrusion by kicking the walls of the conveyance. This commenter 
stated that a sliding scale should be used that increases the amount of 
the fine proportional to the seriousness of the violation. This 
commenter further stated that a sliding scale would help the shipper 
know exactly what is expected of him/her, ensure that USDA 
representatives levy the same fines for the same offense, and provide 
credibility to the USDA during any appeals process. One commenter 
stated that Sec. 88.6 should provide that civil penalties will be 
progressive, with the first offense receiving a written warning; the 
second offense a fine up to $500 per violation; the third offense a 
fine up to $2,500 per violation; and the fourth or subsequent offense a 
fine up to the jurisdictional limit. One commenter suggested that we 
provide for a minimum fine of $500. One commenter suggested that each 
day a violation occurs should be considered a separate violation.
    In Sec. 88.6(a), we state that the Secretary is authorized to 
assess civil penalties of up to $5,000 per violation. We proposed 
assessing civil penalties of up to $5,000 per violation based on the 
legislative history of the statute and our experience as a Federal 
regulatory agency. We believe that a civil penalty of up to $5,000 per 
violation is appropriate and will be effective in deterring 
noncompliance with the regulations. Among other things, this belief is 
based 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 the 
humane treatment of animals. The 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.
    We do not believe that we need to include a sliding scale or a 
minimum fine. The amount of the civil penalty will be determined based 
on the severity of the violation and the history of the owner/shipper's 
compliance with the regulations. Procedures will be in place to ensure 
consistent application of civil penalties. We also do not believe that 
we need to consider each day that a violation occurs as a separate 
violation. We believe that considering each equine transported in 
violation of the regulations as a separate violation is sufficient.
    One commenter stated that Sec. 88.6 should provide that a person 
who assaults, resists, opposes, impedes, intimidates, or interferes 
with any USDA representative or his/her agent in performing an official 
duty pursuant to the regulations should be assessed a fine of no less 
than $1,000 and up to $5,000.
    There is a statute that provides protection to all Federal 
employees (18 U.S.C. 111). The statute prohibits the assault on any 
Federal employee.
    One commenter stated that APHIS should provide that, for any person 
who fails to pay a civil penalty, the Secretary shall request the 
Attorney General to institute a civil action in a district court of the 
United States or other court of the United States for any district in 
which the person is found, resides, or transacts business, to collect 
the penalty, and to provide that the court shall have jurisdiction to 
hear and decide the actions.
    If an owner/shipper is unable to pay a civil penalty, we can pursue 
payment through a payment plan or adjustment of the amount. However, if 
the case is not settled, a formal complaint may be filed. If a 
complaint is issued, the case may go to a hearing. If a hearing is 
held, the matter will be heard and decided by an administrative law 
judge.
    One commenter stated that, to a certain extent, injuries during 
transport are unavoidable and assessing civil penalties to commercial 
transporters may not be appropriate. This commenter stated that civil 
penalties should be designed to ensure compliance with the regulations 
and not punish an industry for occurrences that are beyond its control.
    We understand that some injuries may not be avoidable; however, the 
purpose of the regulations is to ensure the humane transport of equines 
to slaughtering facilities. If shippers and owners adhere to this rule, 
we believe that many of the injuries that equines have suffered in the 
past will be avoided.
    One commenter stated that the regulations do not allow truck 
drivers to provide grounds for their defense as to how the equines were 
injured.
    USDA will consider a trucker's explanation in determining whether a 
violation has occurred. However, as stated in the proposal, if 
adjudication is necessary, it will be conducted pursuant to the USDA'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). The Rules of 
Practice establish, among other things, the procedures for filing a 
complaint and a response, settling a case, and holding a hearing. Based 
on this information, any one who is cited for violating the regulations 
will be provided an opportunity to present his or her case.
    Many commenters stated that enforcement of the regulations may be 
difficult because we use performance-based standards rather than 
engineering-based standards. Some of these commenters stated that 
Congress directed the Secretary of Agriculture to employ ``to the 
extent possible'' performance-based standards. One of these commenters 
stated that USDA tried performance-based standards with Sec. 3.81 of 
the Animal Welfare regulations regarding primate psychological well-
being, which led to confusion among entities that were affected by the 
regulations.
    The conference report states that, to the extent possible, the 
Secretary is to employ performance-based standards rather than 
engineering-based standards when establishing regulations to carry out 
the intent of the statute and that the Secretary is not to inhibit the 
commercially viable transport of equines to slaughtering facilities. We 
used performance-based standards

[[Page 63607]]

rather than engineering-based standard because they are the least 
intrusive method of regulating entities and are potentially less 
burdensome on regulated entities. We will review and evaluate these 
standards once they are in place. If we determine that changes are 
necessary, we will publish another document in the Federal Register for 
public comment.
    One commenter stated that we will not be able to adequately enforce 
the regulations because we do not require persons transporting equines 
to slaughter to register with or apply for a USDA license. This 
commenter stated that individuals who are not in compliance could be 
threatened with suspension of their licenses rather than assessment of 
fines, which could be viewed as the cost of doing business.
    We do not believe that registration with or a license issued by 
APHIS is necessary. We believe that the civil penalties set forth in 
Sec. 88.6 are sufficient to ensure compliance with the regulations.
    One commenter stated that the regulations should provide for 
suspension of a hauler's carrier certificate, the operator's commercial 
driver's license (CDL), and the registration of the vehicle involved 
for not less than 90 calendar days from the date of adjudication upon 
violations of the regulations. This commenter further stated that the 
hauler and consignor should be jointly responsible for the maintenance 
of the animals that were in the vehicle at the time of the seizure at 
the seizing authority's choice until a proper vehicle is provided for 
their continued shipment. The commenter also maintained that failure to 
post a satisfactory bond or to pay the costs involved should result in 
forfeiture of the vehicle and load to the seizing authority as partial 
payment for costs incurred by the seizing authority, which should 
retain all other remedies including civil suits and criminal 
prosecutions. The commenter also stated that a second violation of the 
regulations or violation of any other jurisdiction's animal 
transportation regulations should result in penalties applied per 
animal in the vehicle, without limit, and that a third violation should 
result in a minimum 1-year suspension of certificates and CDL per 
animal in the vehicle.
    The statute does not provide the Secretary with the authority to 
suspend a hauler's carrier certificate, the operator's commercial 
driver's license, or registration of the vehicle if the operator 
violates these regulations. In addition, the statute does not give the 
Secretary authority to seize vehicles. The statute provides the 
Secretary with the authority to assess only civil penalties for 
violation of the regulations.
    One commenter stated that the regulations do not address how we 
will determine, other than by checking for a signed, properly timed and 
dated owner-shipper certificate, that the intentions of the regulations 
are being met and a violation of the regulations has not occurred. One 
commenter stated that the proposed regulations were unclear as to what 
APHIS would do when an owner-shipper certificate appears to be in order 
but the equines arrive in poor condition or with injuries. Several 
commenters stated that the regulations should state that any equine 
arriving in a condition that is noncompliant with the regulations will 
be considered a violation, regardless of the information on the owner-
shipper certificate.
    The USDA representative at the slaughtering facility will have 
access to both the equines and the paperwork accompanying them. If an 
equine arrives at a slaughtering facility with an injury that was not 
recorded on the owner-shipper certificate or in a condition that is 
evidence that the equine was not fit to travel, the owner/shipper may 
be found in violation of the regulations and may be assessed civil 
penalties as set forth in Sec. 88.6.

Paperwork Burden

    One commenter stated that electronic transmission of the owner-
shipper certificate may not decrease the burden because the format must 
be standardized, and a ``hard-copy'' must be made to accompany each 
equine. The commenter stated that the owner-shipper certificate could 
be in book form that is bound and supplied with a duplicate-style copy 
so the owner/shipper would have a copy of the certificate that was 
given to APHIS.
    The owner-shipper certificate will consist of a multipart set that 
will eliminate the need for the owner/shipper to make copies of the 
form.
    One commenter stated that completion of the owner-shipper 
certificate would take 2 to 3 minutes. Several commenters stated that 
completion of the owner-shipper certificate will take more than 5 
minutes per equine. One of these commenters stated that each equine 
must be examined thoroughly, in addition to completing the certificate.
    The estimated burden was based on discussions with owners and 
shippers of slaughter horses and the owner/operators of slaughtering 
facilities. The estimated burden of 5 minutes was only an estimate. We 
are aware that some individuals may take a little less or a little more 
time than others to inspect each equine and complete the owner-shipper 
certificate.

Miscellaneous

    One commenter stated that the proposal does not cover equines that 
belong to slaughtering facilities and that are transferred from a 
feeding facility owned by the facility to the plant grounds. This 
commenter stated that the regulations are not clear as to whether 
owner-shipper certificates are required to ship equines to a feedlot 
when the equines will be eventually transported for slaughter, and they 
are not clear as to whether a slaughtering facility has to complete 
owner-shipper certificates for equines owned by the facility to 
transport them from its own facilities or ranches to the slaughtering 
facility.
    The regulations pertain to any individual or other entity that fits 
the definition of the term owner/shipper. Therefore, a slaughtering 
facility would have to complete an owner-shipper certificate and 
otherwise adhere to the regulations if it moves equines from its own 
premises, such as a ranch or feedlot, to the slaughtering facility. 
However, if equines arrive at a slaughtering facility (defined as a 
commercial establishment that slaughters equines for any purpose) and 
the facility moves all or some of the equines to its own feedlot or 
other premises, the slaughtering facility will not have to complete an 
owner-shipper certificate or otherwise comply with the regulations for 
that movement. The slaughtering facility must, however, complete an 
owner-shipper certificate and otherwise comply with the regulations 
when it transports the equines back to the slaughtering facility.
    One commenter stated that mileage calculations that we provided 
under the ``Executive Order 12866 and Regulatory Flexibility Analysis'' 
section of the proposal were based on the assumption that shippers 
deliver to the closest available plant, which is not always the case. 
This commenter stated that shippers deliver to the plant where they 
have their contract or to the plant that is paying the most money. This 
commenter also stated that the proposal contended that shippers would 
have to share driving responsibilities with another driver to meet the 
requirements, but the regulations do not require it.
    We believe that barring unusual circumstances, the overwhelming 
majority of equines arrive at slaughtering facilities in 28 hours or 
less. As to the use of two different drivers, we stated that drivers of 
equines that originate at east or west coast

[[Page 63608]]

locations could reduce the time equines spent on conveyances 
considerably by using two different drivers on long trips. However, 
this scenario was only an example for those drivers who can share 
driving responsibilities with another driver. If the driver of a 
conveyance will require more than 28 hours to reach his or her 
destination, whether alone or with a partner, he or she must abide by 
Sec. 88.4(b)(3) and offload the equines from the conveyance to provide 
them with appropriate food, potable water, and the opportunity to rest 
for at least 6 consecutive hours before reloading them.
    One commenter stated that we should require drivers to be certified 
by APHIS as knowledgeable in equine handling and humane treatment.
    We do not believe this is necessary. We believe that the 
regulations will help ensure the humane movement of equines that are 
transported to slaughtering facilities. If the equines are not handled 
or transported as required by the regulations, or if the equines are 
injured during transport, the owner/shipper may be found in violation 
of the regulations and assessed a civil penalty. To assist drivers and 
others in meeting the requirements of the regulations, we are preparing 
an educational program.
    One commenter stated that the regulations should extend to agents 
of owners and shippers. This commenter suggested, ``The act, omission, 
or failure of an individual acting for or employed by the owner or 
shipper, within the scope of employment, shall be considered the act, 
omission, or failure of the owner or shipper as well as that of the 
individual.''
    We do not believe that we need to address agents. We believe that 
we have defined owner/shipper broadly enough to cover anyone 
transporting equines to slaughtering facilities (except as specifically 
exempted by the regulations).
    One commenter stated that the regulations will result in increased 
transit time and more frequent loading and unloading of equines, which 
will increase the possibility of exacerbating existing injuries or 
creating new ones.
    We do not believe that the regulations will result in an increase 
in transit time or loading and unloading in most cases. As stated in 
the discussion under ``Executive Order 12866 and Regulatory Flexibility 
Act,'' officials at two of the U.S. equine slaughtering facilities, 
including the largest facility, indicated that, barring unusual 
circumstances, the overwhelming majority of equines already arrive at 
the slaughtering facilities in 28 hours or less. In cases where 
transport would take more than 28 hours, we believe the benefits of 
unloading the equines for rest, food, and water outweigh the 
disadvantages of unloading and reloading. Also, owners or shippers 
could locate, in advance, appropriate facilities close to their routes 
for unloading the equines. In addition, the educational program that we 
are developing will provide owners and shippers with information on the 
proper methods for loading and unloading equines from a conveyance to 
help ensure that injuries to equines do not occur.
    One commenter stated that the regulations should apply as minimum 
standards for all commercial haulers, regardless of the origin or 
destination of the load. One commenter stated that the regulations seem 
to state that if an equine is transported to a slaughtering facility, 
the transportation is given protection by Federal regulations; however, 
if the animal is transported to some other destination, the 
transportation can be performed without protection of these 
regulations.
    We are unable to expand the scope of these regulations to include 
the transportation of equines to any destination other than a 
slaughtering facility. Congress authorized the Secretary to issue 
guidelines for the regulation of the commercial transportation of 
equines for slaughter by persons regularly engaged in that activity. In 
addition, Congress clarified its intentions with regard to the statute 
through a conference report. The conference report states, among other 
things, that the Secretary has not been given the authority to regulate 
the routine or regular transportation of equines to other than a 
slaughtering facility.
    One commenter stated that conveyances that enter the United States 
from Canada are sealed by authorities in Canada, and that to meet the 
requirement that equines must be fed, watered, and offloaded every 28 
hours, the seals would have to be broken during transport in the United 
States to comply with the regulations.
    Few equines are transported from Canada into the United States for 
slaughter purposes. However, if equines are transported from Canada 
into the United States and must be offloaded in the United States to 
meet the requirements of part 88, the seals may only be broken by a 
USDA representative at an approved site for offloading the equines. The 
owner/shipper must make arrangements with the APHIS office that is 
nearest to the location where the equines must be offloaded. After the 
equines have had the prescribed rest, food, and water, the truck will 
be sealed by the USDA representative and allowed to resume transport to 
the slaughtering facility.
    One commenter stated that we should obtain written agreements from 
Canada and Mexico to ensure compliance with the regulations for equines 
moving into those countries for slaughter. One commenter stated that 
the regulations would allow travel time of 28 hours within the United 
States and additional travel time after entering Canada. This commenter 
stated that the regulations should include travel time to the final 
destination in Canada because the locations of plants in Canada are 
established.
    For equines transported by conveyance from a point inside the 
United States to a slaughtering facility outside the United States, the 
regulations end at the border, where the owner/shipper must present the 
owner-shipper certificates. We do not have jurisdiction over movement 
of equines outside the United States. Although, we currently do not 
have an arrangement with Mexico, we have revised the owner-shipper 
certificate to include a field for a stamp to be administered by 
Canadian officials at slaughtering facilities in Canada. The stamp will 
include the time and date of arrival and slaughtering facility. We can 
use this information to verify the amount of time that equines have 
been on a conveyance prior to leaving the United States.
    One commenter stated that we must provide the public with the 
findings from USDA-commissioned research so the public can offer 
comment. Another commenter stated that she could not obtain copies of 
the research.
    Copies of the USDA-commissioned research were and are available 
from the person listed under FOR FURTHER INFORMATION CONTACT.
    One commenter stated that an equine first aid kit that includes, 
among other things, fly spray, rubbing alcohol, and a hoof pick should 
be on the conveyance. In addition, this commenter stated that at least 
one fire extinguisher should be on the conveyance and that the driver's 
ability to use the fire extinguisher should be established by an APHIS 
inspector.
    We do not believe that it is necessary to require an equine first 
aid kit. If an equine is in physical distress, the owner/shipper is 
required, in accordance with Sec. 88.4(b)(2), to have an equine 
veterinarian provide veterinary assistance as soon as possible. Until 
such assistance is available, the owner/shipper may be the only person 
in a conveyance, and attempts by the owner/shipper to apply first aid, 
without assistance, to an injured equine could be

[[Page 63609]]

dangerous for the person and the equine. As to a fire extinguisher, the 
Federal Motor Carrier Safety Administration within the Department of 
Transportation requires commercial motor vehicles used on a highway in 
interstate commerce to be equipped with a fire extinguisher when, in 
short, the gross vehicle has a weight rating or gross combination 
weight rating, or gross vehicle weight, or gross combination weight, of 
4,537 kg (10,001 lb) or more; whichever is greater. We believe that 
most conveyances used for the commercial transportation of equines to 
slaughtering facilities meet this weight threshold.
    Several commenters stated that a $400 disposal fee should be levied 
against an owner or shipper for every equine that arrives dead or in an 
unusable condition to discourage owners from sending downed or dying 
horses to slaughter. One of these commenters stated that the disposal 
fee could be used to subsidize long distance shipments of equines that 
are made at reduced loading density. Two commenters stated that the 
regulations should establish a per equine fee of $5 to be levied upon 
an owner who sells an equine to slaughter. One commenter stated that 
the $5 per equine fee could be used to cover the costs of administering 
and enforcing the regulations, and another commenter stated that the 
fee could be used to provide rewards for information leading to 
documentation of violations of the regulations.
    We believe that the regulations will help ensure that equines that 
are shipped to slaughtering facilities are fit to travel. However, we 
do not have authority to assess a disposal fee and/or a $5 fee per 
equine.
    One commenter stated that we should not allow dogs to be used to 
herd equines for breeding.
    If someone wishes to use dogs to herd equines into a conveyance, 
the equines must be handled in a manner that does not violate the 
regulations, including those in Sec. 88.4(c). In Sec. 88.4, paragraph 
(c) states that handling of all equines in commercial transportation to 
a slaughtering facility shall be done in a manner that does not cause 
unnecessary discomfort, stress, physical harm, or trauma.
    One commenter stated that all conveyances that contain live animals 
should be so labeled and that a toll-free USDA/APHIS telephone number 
should be displayed for the public to call if a vehicle is operating in 
an unsafe manner or a dangerous or inhumane treatment is witnessed.
    We do not believe that we should require a conveyance to be labeled 
as containing live equines or to display a toll free USDA/APHIS 
telephone number. Many conveyances transport equines for purposes other 
than to slaughtering facilities, and the Secretary has not been given 
the authority to regulate the routine or regular transportation of 
equines to other than a slaughtering facility. However, if someone 
witnesses inhumane treatment, we encourage the person to contact the 
nearest APHIS office or the proper local authorities. In addition, if a 
vehicle is operating in an unsafe manner, especially if human safety is 
threatened, the proper local law enforcement authorities should be 
contacted.
    One commenter stated that individuals who transport equines to 
veterinary facilities for treatment should be exempt from the 
regulations that pertain to the health of the equines that are hauled.
    The regulations do not pertain to the transport of equines to 
veterinary facilities, only to the transport of equines to slaughtering 
facilities.
    One commenter stated that USDA does not have a program to identify 
stolen equines that arrive at slaughtering facilities.
    APHIS will require an owner-shipper certificate for each equine 
that is transported to a slaughtering facility. The USDA representative 
at the slaughtering facility will collect the certificates. In 
addition, the owner/shipper must maintain a copy of the certificate for 
1 year. We will maintain information from the completed certificates in 
a database that can help us trace lost or stolen equines.
    One commenter stated that proficiency testing (written and skills) 
for those engaged in the commercial transport of equines should be 
required because it is impossible to determine whether the persons 
targeted (e.g., drivers of the conveyances) are reading and 
understanding the educational materials. One commenter stated that an 
educational component should be included in the regulations to ensure 
that all affected parties are informed of the new regulations. One 
commenter stated that APHIS must put effort toward educating inspectors 
at feedlots, assembly points, or stockyards because shippers and owners 
already know how to properly transport equines.
    We do not think that a proficiency test is necessary. We are 
developing an educational program that will include a video, guidebook, 
and workshops. The program will be directed towards owners, shippers, 
and others in the equine slaughtering industry. We will also provide 
opportunities for individuals who work at feedlots, assembly points, 
and stockyards to participate in the educational program.
    Several commenters expressed concern that burdensome regulations in 
the United States may lead to an increase in the shipment of livestock 
to countries where animal welfare is not a consideration. One of these 
commenters and others stated that the regulations are not necessary and 
that effective enforcement of existing laws is necessary. One of these 
commenters stated that safeguards already exist for the humane 
treatment of equines prior to slaughter. One commenter stated that 
imposing additional humane shipping conditions on the industry will 
decrease profits by increasing transportation costs.
    Until this final rule becomes effective, no specific standards 
exist that address the needs of equines transported to slaughtering 
facilities. We believe that the regulations are the minimum standards 
to ensure the humane movement of equines to slaughtering facilities via 
commercial transportation. If equines are transported by conveyance 
from a point inside the United States to a slaughtering facility 
outside the United States, the owner/shipper will be required to meet 
the requirements of the regulations until the conveyance reaches the 
U.S. border. In addition, this rule allows us to assess civil penalties 
for those individuals who are not in compliance.
    Under the heading, ``Executive Order 12866 and Regulatory 
Flexibility Act,'' we estimate that this rule will increase operating 
costs for owners and commercial shippers who transport equines to 
slaughtering facilities by an amount somewhere between $300 and several 
thousand dollars annually for an entity that transports 500 equines per 
year. However, we added that the data suggested that the economic 
consequences for most entities would fall somewhere near the minimum 
point on the impact scale because many entities are already in 
compliance with at least some of the rule's provisions.
    One commenter stated that the USDA does nothing to prevent the 
shipment of diseased animals for human consumption.
    FSIS has regulations that provide for the antemortem and postmortem 
examination of equines to ensure that equines with certain diseases are 
not slaughtered or used for the purposes of human consumption.
    One commenter stated that all horses shipped for slaughter should 
have a negative Coggins test performed within 6 months of transport due 
to possible zoonosis and also because horses are transported near 
highways and pass

[[Page 63610]]

horses on private farms and could pose a disease risk. One commenter 
stated that Coggins tests are required for horses that enter or exit 
Pennsylvania.
    A Coggins test is the common name for the agar gel immunodiffusion 
test used for the diagnosis of equine infectious anemia (EIA). The 
purpose of this rule is to provide for the humane transport of equines 
to slaughtering facilities. Other regulations are concerned with the 
potential transmission of disease, including 9 CFR part 75, which 
restricts the interstate movement of horses that are positive to a test 
for EIA. Also, all States require a Coggins test for equines entering 
the State. At this time, there is no evidence that EIA can be 
contracted by humans through the consumption of meat from an equine 
infected with EIA. However, equines infected with EIA are not allowed 
to be used for human consumption. The transmission of EIA infection 
from equines on a conveyance to equines on farms that are passed by the 
conveyance is a low risk and highly unlikely because a number of 
factors have to be present, such as presence of tabanidaes (horse 
flies) and high viremia in the infected equine.
    Several commenters stated that all meetings regarding the statute 
were not open to all interested parties. One commenter stated that, 
contrary to the statements in the proposal, consensus was not reached 
on the proposed regulations, and certain humane organizations opposed 
the regulations.
    We did not state in the proposed rule that the proposal was a 
consensus-based document. We stated that, prior to drafting the 
proposed rule, APHIS representatives established a working group that 
included participants from other parts of the USDA, including FSIS and 
the Agricultural Marketing Service. In addition, APHIS attended two 
meetings regarding the statute that were hosted by humane organizations 
and attended by representatives of the equine, auction, slaughter, and 
trucking industries and the research and veterinary communities. At 
these meetings, we had an opportunity to listen to diverse opinions. We 
have relied on the proposed rule and public comment period to obtain 
comments from all interested persons.
    One commenter stated that APHIS should remove ``minimum'' in the 
summary in reference to the standards to ensure the humane movement of 
equines to slaughtering facilities. This commenter also added that the 
summary should be revised to state ``humane movement and treatment of 
equines to slaughtering facilities via commercial transportation.''
    The summary only serves as a brief description of the document and 
is not intended to prove a point or argue a case.
    Two commenters stated that proposed rules should be made available 
to everyone, and one commenter stated that APHIS should disclose them 
to the media, especially the press.
    All proposed rules are published in the Federal Register, which 
satisfies the legal requirements to notify the public. In addition, 
APHIS makes all of its proposed rules available on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html and advises various 
media through distribution of press releases.
    Two commenters stated that they must pay taxes on transactions that 
involve horses, but entities involved in the transportation of horses 
to slaughter, including slaughtering facilities, do not. Many 
commenters stated that they were opposed to the slaughter of equines. 
One commenter stated that, rather than slaughter horses, zoos should be 
established or States zoned to hold the horses. These comments are 
outside the scope of this rulemaking.
    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. In addition, we are making minor, 
nonsubstantive, editorial changes in the rule for clarity.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The 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.
    In accordance with 5 U.S.C. 604, we have performed a final 
regulatory flexibility analysis for this rule, which is set out below. 
Our discussion of the anticipated economic effects of this rule on 
small entities also serves as our cost-benefit analysis under Executive 
Order 12866.
    This rule 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 regulations, which 
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 
regulations 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.
    This rule pertains 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 three 
slaughtering facilities that accept equines in the continental United 
States: Two are located in Texas (Ft. Worth and Kaufman), and one is in 
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.

Economic Effects of the Rule on Owners and Commercial Shippers

    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, for the purposes of this final regulatory flexibility 
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

[[Page 63611]]

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, the regulations will 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 owners and commercial shippers will be affected by 
this 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 owners and commercial shippers 
(approximately 200), the average number of equines transported annually 
to slaughter per affected entity would be 500.
    This rule will require that, for a period of not less than 6 
consecutive hours immediately 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 this rule. In addition, the owners are more likely than 
commercial shippers to have the facilities necessary to meet the 
preloading requirements.
    This 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 most, the rule would result in owners having to keep 
their equines in a farm or feedlot for an additional 6 hours to fulfill 
the 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.
    We cannot estimate the precise dollar effects of this requirement 
because no hard data is available on the prevalence of slaughter 
equines receiving the required food, water, and rest prior to loading. 
However, for the reasons stated above, the economic effects would 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.
    This rule will 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 will include a statement that the equine has received the 
required preloading services. If, as a result of this 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 average 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 this rule, the owner could ship only 35 equines in a 
particular shipment, 3 fewer than the 38 that would have been shipped 
had the 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.
    This rule will 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. This 
rule will 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, this rule will require that 
stallions and other aggressive equines be segregated from each other 
and all other equines on the conveyance.
    Available data suggest that the ``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

[[Page 63612]]

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.
    This rule will 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, will be banned in 5 years. (See 
``Alternatives Considered,'' below, for a discussion of why we selected 
a 5-year phase-in period rather than a shorter time.) 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 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 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.
    This rule will 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 will be fit to travel if it: (1) Can bear 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 will not need the services of a veterinarian 
in order to make the fitness-to-travel determination. This rule will 
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.
    This requirement for an owner-shipper certificate will 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 will 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 will be theirs, not the commercial 
shippers. The owners will 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 will not incur installation costs.
    The added administrative costs that owners will 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 
will have to spend about 42 hours per year complying with the 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 will likely be less 
than those for owners.
    This rule will allow the use of electric prods only in life-
threatening situations and will prohibit the transport of equines to 
slaughter on conveyances divided into more than one level, such as 
double-deck trailers, 5 years after publication of this final rule. The 
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 owners and shippers will be 
negatively affected by the reduction in the numbers of equines that 
could be transported in a single conveyance. Upon publication of this 
rule, shippers using floating-deck trailers to transport equines to 
slaughtering facilities will need to collapse the decks so that they 
create only one level. Conveyances divided permanently into more than 
one stacked

[[Page 63613]]

level can be, and are, also used to transport commodities other than 
equines, including livestock 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. Upon effect of the ban, commercial 
shippers who transport equines to slaughtering facilities could 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 will have to find another use for the equipment 
or trade them for single-deck trailers. Owners should be able to sell 
their serviceable trailers at fair market value to transporters of 
commodities other than equines. Furthermore, some of the double-deck 
trailers now in use by owners will need to be taken out of service 
within the next 5 years anyway as the result of normal wear and tear 
and could be replaced by single-deck trailers.
    In conclusion, we do not anticipate that any of the requirements 
will have undue onerous economic effects on any affected owners or 
commercial shippers. We believe that many transporters of slaughter 
equines may already be in compliance with many of the requirements. The 
requirement for an owner-shipper certificate will affect all 
transporters of slaughter equines, but we have designed the form to 
make its preparation as easy as possible. We do not believe that the 
completion and maintenance of these certificates will 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 ban on double-deck trailers 
should not have a significant economic effect on owners or commercial 
shippers because these trailers can be used for other purposes and will 
need to be replaced anyway within the next 5 years and could be 
replaced with a single-deck trailer.
    At a minimum, the rule will require that affected owners and 
commercial shippers 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 
will translate into added costs of about $300 annually. In a worst-case 
scenario, the rule can 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 owners 
and commercial shippers are engaging in little or no voluntary 
compliance with the requirements.

Economic Effects of the Rule on Horse Slaughtering Facilities

    Up to this point, the discussion in this final regulatory 
flexibility analysis has centered entirely on owners and commercial 
shippers, who represent the bulk of the entities affected by this rule. 
However, the rule will also impact the three horse slaughtering 
facilities currently operating in the continental United States. While 
the deferral of the effective date for the prohibition on double-deck 
trailers will allow them time to respond to the expected decline in the 
number of transporters willing to haul horses to slaughter, these 
slaughtering facilities will nonetheless be affected because they will 
experience lost business as a result of that expected decline. Some 
transporters will choose to keep their double-deck trailers and carry 
other commodities (i.e., other than equine) because in their locations 
it is more lucrative for them to do so. Other transporters will likely 
find that it is not cost effective to haul horses long-distance in 
conveyances that have a smaller capacity, i.e., straight-deck and 
goose-neck trailers.
    The slaughtering facilities will also experience increased hauling 
costs over time, because transporters that continue to ship horses to 
slaughter will be forced to do so in smaller conveyances. The hauling 
cost that slaughtering facilities pay to acquire each horse will 
increase, because the number of horses per load (being hauled the same 
distance) will be reduced but the hauling cost per load will remain the 
same. Officials at one U.S. slaughtering facility indicate that 
commercial shippers currently charge a hauling fee of $1.65 per mile if 
they have a return load, and $2.25 per mile if they return empty, 
regardless of the type of conveyance used. For a trip of 1,000 miles at 
$1.65 per mile, the facility's hauling cost per horse is $36.67 with a 
double-deck trailer and $43.42 with a straight-deck trailer, an 
increase of $6.75 or 18 percent per horse.\2\ For each lot of 1,000 
horses delivered to the slaughtering facility, the per horse cost 
increase of $6.75 translates into increased costs of $6,750.
---------------------------------------------------------------------------

    \2\ This assumes 45 horses on a double-deck trailer and 38 
horses on a single-deck trailer.
---------------------------------------------------------------------------

Economic Effects on Small Entities

    The Regulatory Flexibility Act requires that agencies consider the 
economic effects of rules on small entities (i.e., businesses, 
organizations, and governmental jurisdictions). As discussed above, the 
entities that will be affected by this rule are owners and commercial 
shippers who transport equines to slaughtering facilities and the 
slaughtering facilities themselves.
    As stated previously, we estimate that approximately 200 entities 
will be affected by this rule, most of whom are owners and commercial 
shippers. Although the sizes of these entities are 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 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.
    This rule will result in increased costs for affected entities, 
large and small. As indicated above, operating costs will 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 will 
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 rule's provisions, such as stallion segregation. Because we did not 
have enough data to conclude that even a cost increase of as low as 
$300 annually will not be significant for most of the potentially 
affected entities, we requested public comment on the potential 
economic impact of the proposal on small entities.
    We received several comments regarding the initial regulatory 
flexibility analysis.
    One commenter stated that the effect of the rule is so minimal that 
the small entities are the ``winners'' at an impact of $300 per year or 
$25 per month. Another commenter stated that APHIS put more emphasis on 
not creating financial hardship for the entities involved than on what 
Congress mandated regarding the humane transport of equines to 
slaughter.
    We believe that these regulations will help ensure the humane 
movement of

[[Page 63614]]

equines to slaughtering facilities via commercial transportation. 
However, we do not believe that small entities are not affected. In 
fact, in the discussion under the heading, ``Executive Order 12866 and 
Regulatory Flexibility Act,'' we stated that the regulations would have 
a negative economic effect on affected entities, large and small. We 
determined that operating costs would increase somewhere between about 
$300 and several thousand dollars annually for an entity that 
transports 500 equines per year, which would be a negative impact on 
these entities. However, we stated that, for most entities, the 
economic consequences of the regulations would fall somewhere near the 
minimum point on the impact scale because many entities are already in 
compliance with at least some of the requirements in part 88.
    One commenter stated that the number of affected entities was 
understated because certain entities were not counted. Commercial 
airlines; air and sea cargo carriers; vendors that supply packing 
plants; feed manufacturers; and suppliers of veterinary supplies and 
medications were among the entities the commenter cited.
    We stated above that the entities that would be affected by this 
rule were owners and commercial shippers who transport equines to 
slaughtering facilities and the slaughtering facilities themselves. 
These are the primary entities that would be directly affected by this 
rule. It is possible that these regulations may indirectly affect other 
entities, including commercial airlines, vendors, and feed 
manufacturers; however, these entities are not directly affected by 
this rule, and this rule should not have a significant economic effect 
on them.

Alternatives Considered

    The Regulatory Flexibility Act requires Federal agencies 
promulgating new regulations to consider alternatives that will lessen 
the economic effects of the regulations on affected small entities. In 
developing the proposed rule, we considered many alternatives, some of 
which are discussed below. In developing the proposed program to carry 
out the statute, we 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, APHIS representatives 
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.
    We considered requiring that owners and commercial shippers of 
equines destined for slaughter secure the services of a veterinarian to 
certify the equines' fitness for travel. However, this rule allows 
owners and commercial shippers to certify the equines' fitness to 
travel themselves. In addition, we considered various alternatives with 
regard to the types of equines that would be prohibited from shipment. 
After much consideration, we are prohibiting 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. We believe that we 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, we considered many 
allowable time frames 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, we determined that such a ban is necessary to ensure the humane 
transport of equines to slaughtering facilities. However, this rule 
would allow the use of double-deck trailers for a period of 5 years 
following publication of this rule to lessen the effect of the ban on 
affected entities.
    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 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.
    For this rule, we also considered establishing the effective date 
of the ban on double-deck trailers at various points of time in the 
future, ranging from 6 months to 10 years after the rule's publication. 
We chose a 5-year effective date because we believe it provides a 
strategy for steadily improving the welfare of equines transported to 
slaughter. For reasons discussed below, a shorter period could have an 
onerous impact on the slaughter horse industry and result in unintended 
consequences for equines.
    As discussed above, hauling costs for slaughtering facilities will 
increase as a result of owners and commercial shippers using smaller 
conveyances, and to the extent that the transition to a new single-deck 
system results in more trips at the higher, empty backhaul rate. In 
this regard, slaughtering facility officials believe that transporters 
who decide to continue shipping horses in the new single-deck 
environment will need time to find markets or customers with 
alternative products to haul, thereby avoiding empty backhauls and 
saving the facilities money. As indicated above, transporters charge 
one slaughtering facility a hauling fee of $1.65 per mile if they have 
a return load and $2.25 per mile if they return empty. For one trip of 
1,000 miles, the savings for that facility would be $600 if the 
transporter is able to secure a return load. For 100 trips, the savings 
would be $60,000.
    Slaughtering facility officials believe that they also need a 
deferral of the effective date for the prohibition on double-deck 
trailers to allow them time to respond to the expected decline in the 
number of transporters willing to haul horses to slaughter. 
Specifically, they have stated that they need time to budget and to 
arrange for financing on equipment they may need to acquire if they 
must haul horses on their own because commercial shippers and owners 
will not. The largest facility currently owns two tractors and one 
straight-deck trailer and estimates that it would have to acquire about 
10 additional tractor trailers in order to do all of its own hauling. 
One new tractor costs approximately $100,000, and one new single-deck 
trailer costs approximately $38,000.
    Officials at one slaughtering facility believe that, because the 
profit margin for their operation is already very thin (due in part to 
the financial burden imposed by the new European Union Additional 
Residue Testing Program), the facility could not make the transition to 
single-deck trailers in 6 months.\3\ However, the same officials 
believe that, with a gradual transition,

[[Page 63615]]

over a 5-year period, they would be able to plan accordingly and the 
facility might survive. They point out that their facility, which 
generates export sales exclusively, may be forced to close regardless 
of the time frame imposed by this rule, but the facility's chances of 
remaining open would be substantially improved with a 5-year phase-in.
---------------------------------------------------------------------------

    \3\ The European Union established Maxxam Laboratory, Inc. 
(Maxxam) in Canada as the North American residue testing facility. 
Maxxam charged the horse slaughter facilities in the United States 
$130,000 start-up costs; as a direct result, one facility, Central 
Nebraska Packing in North Platte, NE., closed its operation. The 
three facilities in Canada in direct competition with the U.S. 
facilities are subsidized by the Canadian government for both start-
up and future testing fees. This places the U.S. facilities at a 
financial disadvantange with their Canadian competitors.
---------------------------------------------------------------------------

    If the facility closes, we believe it likely that horses in the 
United States that are intended for slaughter will be trucked to 
feedlots in Canada or Mexico, ostensibly as saddle horses, then go to 
slaughter. If that happens, we will have no jurisdiction over those 
movements because our statutory authority to regulate is limited to the 
commercial transportation of horses to slaughter and to movements to 
slaughter within the United States. Thus, a critical factor in our 
decision to use a 5-year time frame for the ban on double-deck trailers 
is our belief that if the rule has too great an impact on horse 
slaughtering facilities in the United States, our rule will not provide 
equines transported to slaughter the protection that we intend.
    The information collection and recordkeeping requirements contained 
in this rule were described in the proposed rule and have been approved 
by the Office of Management and Budget. See ``Paperwork Reduction 
Act,'' below.

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.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. et seq.), the information collection or 
recordkeeping requirements included in this final rule have been 
approved by the Office of Management and Budget (OMB). The assigned OMB 
control number is 0579-0160.

List of Subjects

9 CFR Part 70

    Administrative practice and procedure.

9 CFR Part 88

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


    Accordingly, we are amending 9 CFR, chapter I, subchapter C, as 
follows:

PART 70--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER CERTAIN ACTS

    1. The authority citation for part 70 is 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, 371.4.


    2. In Sec. 70.1, the list of statutory provisions is 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 is 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, 371.4.


Sec. 88.1  Definitions.

    The following definitions apply to this part:
    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/shipper. Any individual, partnership, corporation, or 
cooperative association that engages in the commercial transportation 
of more than 20 equines per year to slaughtering facilities, except any 
individual or other entity who transports equines to slaughtering 
facilities incidental to his or her principal activity of production 
agriculture (production of food or fiber).
    Owner-shipper certificate. VS Form 10-13,\1\ which requires the 
information specified by Sec. 88.4(a)(3) of this part.
---------------------------------------------------------------------------

    \1\ Forms may be obtained from the National Animal Health 
Programs Staff, Veterinary Services, APHIS, 4700 River Road Unit 43, 
Riverdale, MD 20737-1231.
---------------------------------------------------------------------------

    Secretary. The Secretary of 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 from any 
individual or other entity who transported the equines information 
regarding the business of that individual or other entity. When such 
information is requested, the individual or other entity who 
transported the equines must 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

[[Page 63616]]

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 December 7, 2006. 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 owner/shipper must:
    (1) For a period of not less than 6 consecutive hours immediately 
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 \2\ to each equine in the shipment;
---------------------------------------------------------------------------

    \2\ 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, which must be typed or 
legibly completed in ink:
    (i) The owner/shipper's name, address, and telephone number;
    (ii) The receiver's (destination) name, address, and telephone 
number;
    (iii) The name of the auction/market, if applicable;
    (iv) A description of the conveyance, including the license plate 
number;
    (v) A description of the equine's physical characteristics, 
including such information as sex, breed, coloring, distinguishing 
markings, permanent brands, tattoos, and electronic devices that could 
be used to identify the equine;
    (vi) The number of the USDA backtag applied to the equine in 
accordance with paragraph (a)(2) of this section;
    (vii) 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, able to walk unassisted, not blind in both eyes, older than 6 
months of age, and not likely to give birth during the trip;
    (viii) A description of any preexisting injuries or other unusual 
condition of the equine, such as a wound or blindness in one eye, that 
may cause the equine to have special handling needs;
    (ix) The date, time, and place the equine was loaded on the 
conveyance; and
    (x) 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 owner/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. The owner/shipper must obtain veterinary assistance as soon 
as possible from an equine veterinarian for any equines in obvious 
physical distress. Equines that become nonambulatory en route must be 
euthanized by an equine veterinarian. If an equine dies en route, the 
owner/shipper must contact the nearest APHIS office as soon as possible 
and allow an APHIS veterinarian to examine the equine. If an APHIS 
veterinarian is not available, the owner/shipper must contact an equine 
veterinarian;
    (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; and
    (4) If offloading is required en route to the slaughtering 
facility, the owner/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 owner/
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 an equine veterinarian to treat 
an equine, including performing euthanasia if necessary.
    (f) The individual or other entity who signs the owner-shipper 
certificate 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 owner/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) If the owner/shipper arrives during normal business hours, the 
owner/shipper must not leave the premises of

[[Page 63617]]

a slaughtering facility until the equines have been examined by a USDA 
representative. However, if the owner/shipper arrives outside of normal 
business hours, the owner/shipper may leave the premises but must 
return to the premises of the slaughtering facility to meet the USDA 
representative upon his or her arrival.
    (c) Any owner/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 of this 
part will be considered a separate violation.

(Approved by the Office of Management and Budget under control 
number 0579-0160.)

    Done in Washington, DC, this 3rd day of December 2001.
Bill Hawks,
Under Secretary, Marketing and Regulatory Programs.
[FR Doc. 01-30259 Filed 12-6-01; 8:45 am]
BILLING CODE 3410-34-U