New Regulation Won’t Protect Equines

 by Valerie James Patton, Vice-President, Equine Welfare Alliance, and Laura Allen, Executive Director, Animal Law Coalition and Vice-President, Equine Welfare Alliance

A new USDA regulation effective October 7, 2011 is supposed to close a loophole under the Commercial Transportation of Equines to Slaughter Act, 9 CFR 88.1 et seq. that has allowed horses en route to slaughter to be transported in double deck trailers until the last leg of the journey.

Since December, 2006, double deck trailers have been prohibited as a means of transporting equines to slaughter.  Equines, however, are not typically sent directly to slaughter from the auction or point of sale. Instead, they endure an arduous journey first to a stockyard, feedlot, export pen or other point before they are actually sent to slaughter. The regulations did not prohibit use of double deck trailers for horses that would be traveling to an intermediate point first, before their transport directly to the border crossing to be exported for slaughter. Shippers could avoid compliance of the regulations and still ship horses intended for slaughter on double-deck trailers without adequate food, water or rest as required by the regulations for transporting horses to slaughter.

The USDA stated on their website: "We believe that equines may be delivered to these intermediate points en route to slaughter for the sole purpose of avoiding compliance with the regulations."  And "that equines that are bound for slaughter but are delivered first to an assembly point, feedlot, or stockyard are at higher risk for inhumane treatment."

USDA’s enforcement agency, the Animal Plant Health Inspection Service (APHIS) proposed a ruling in November, 2007, to close the loophole, and the 2010 Office of Inspector General (OIG) report recommended that APHIS "broaden the scope of the regulation of horses sent to slaughter in foreign facilities".  The 2011 Government Accountability Office (GAO) report concurred and also recommended that the proposed ruling should be made final.

Nearly 4 years later the USDA/APHIS issued the final ruling, effective October 7, 2011.

The regulation defines equines for slaughter to include those en route to slaughter or to border crossings for export to slaughter in foreign facilities, and applies to horses that are transported first to "an assembly point, feedlot, or stockyard". An "assembly point" means "[a]ny facility, including auction markets, ranches, feedlots, and stockyards, in which equines are gathered in commerce." "Feedlot" refers to "[a]ny facility which consolidates livestock for preconditioning, feeding, fattening, or holding before being sent to slaughter." And, "stockyard" is defined as "[a]ny place, establishment, or facility commonly known as stockyards, conducted, operated, or managed for profit or nonprofit as a public market for livestock producers, feeders, market agencies, and buyers, consisting of pens, or other enclosures, and their appurtenances, in which live cattle, sheep, swine, horses, mules, or goats are received, held, or kept for sale or shipment in commerce." 76 FR 55213

The regulation also requires that the equine be designated as an equine for slaughter at the beginning of the journey when the horse is purchased by the hauler or kill buyer at auction and intended for transport to slaughter, instead of at the final part of the journey after the equine may have already traveled through several states and thousand of miles. 

(The Horse Transportation Safety Act that would ban any use of double deck trailers to transport horses regardless of destination, remains pending.)

APHIS issued this statement about the new regulation:  "This final rule amends the regulations regarding the commercial transportation of equines to slaughter by making equines delivered to intermediate points en route to slaughter subject to the same regulations as those moved directly to slaughtering establishments. The purpose of the rule is to ensure the humane treatment of equines bound for slaughter that are moved first to an assembly point, feedlot, or stockyard." 76 FR 55213; 8 CFR 88.1 

All well and good, except, says Valerie James-Patton, vice-president of the Equine Welfare Alliance, "This new regulation is unenforceable because it relies on finding violations from the information on the owner/shipper certificate*. It is the kill buyer or hauler who fills out the certificate indicating at what point of the transport journey the equine is intended for slaughter.

"Even if the hauler provides truthful and accurate information as required, in 2011, the GAO reviewed the number of these certificates that are returned to APHIS, and found that less than half are returned to APHIS, and many of those that are returned, are incomplete and missing information needed to check for violations. In fact, APHIS has not received back any certificates from the state of Texas in more than a year. It doesn’t make sense that APHIS believes they can rely on owner/shipper certificates to enforce this regulation."

Horses are routinely purchased at auction by horse traders and transported as non-slaughter horses and then sold for slaughter maybe at the end of the journey. Or the kill buyer or hauler will simply designate that the horses are being shipped as feeder horses going to foreign feedlots or for reasons other than slaughter. There is no way to know if the horses are being shipped for slaughter unless the trader, kill buyer or hauler admits this and accurately fills out the owner/shipper certificate and it is returned to APHIS. 

If these certificates are returned at all, they are not returned until after the equines have reached their final destination in the U.S. at the border crossing, and have already endured the suffering caused from violations to the regulations for humane transport.  The certificates do nothing to ease the suffering of an equine during its journey when being inhumanely transported to slaughter.

What does APHIS say about the enforcement issue? "Shippers who transport equines from farms or feedlots to intermediate points en route to slaughter are likely to be largely in regulatory compliance voluntarily. They have an incentive to provide the animals with food, water, and care as required by the regulations because healthy equines have increased slaughter value." 76 FR 55213

But for APHIS officials to believe the kill buyers or haulers will voluntarily provide truthful and accurate information on the certificate that could reveal their own violations of the regulations, leaves you to wonder what they are smoking.

*footnote – (The owner/shipper certificate is a required shipping document for each horse shipped to U.S. border crossings for export to slaughter in foreign facilities. This document was required for each horse that had been shipped to horse slaughter facilities in the U.S. when U.S. facilities were operating prior to 2007)

Indeed, the 2010 OIG report confirmed that APHIS lacks control to enforce compliance by the owner/shippers or haulers. Which explains why the certificates are often not turned in or are incomplete or inaccurate.

Also, APHIS has no official agreement with Canada or Mexico for cooperation to comply with regulations to provide necessary information needed to complete the owner/shipper certificate and return it to APHIS for a check for violations.   

The GAO reported in June, 2011 that APHIS was unable enforce compliance even by the Texas Agriculture Department to return owner/shipper certificates for horses exported from border crossings in Texas to Mexico for slaughter in Mexican slaughter plants, and in fact, APHIS had not received any owner/shipper certificates for horses exported to Mexico from Texas in over a year.

The OIG also found that APHIS continues to approve of new shipments to slaughter by kill buyers or haulers that have outstanding unpaid fines for violations of humane regulations. The current regulations do not give APHIS the authority to refuse approval.  The OIG recommended that APHIS revise regulations that would allow them to refuse approvals for new shipments of horses to violators of the regulations for inhumane handling, because allowing kill buyers or haulers to continue to transport without paying fines, leaves them no incentive to try to comply with regulations. 

 

In reply to the OIG recommendation, APHIS stated that initial discussions on this matter with the USDA Office of the General Counsel (OGC) indicated that there could be legal issues with singling out violators of the regulations, and consecutively, for being able to provide a list of violators to agencies that could help enforce regulations if they did have a list of violators. APHIS claimed it would seek further advice from the agency, and provide an evaluation on their options regarding the recommendation and have it completed by May 31, 2011.

Further findings from the OIG revealed "that the APHIS database that was intended to collect information from the Owner/Shipper Certificate, including backtag numbers, is not operational, and APHIS is currently using a scanning system to maintain copies of completed shipping documents. Personnel can still determine who received each tag but they cannot track any other details about the horse, such as when it reached the border or the slaughter facility. In 2006, program officials were directed to discontinue the use of the data tracking system, and the two data entry positions dedicated to entering slaughter horse data into the tracking system were eliminated. APHIS officials stated that they believed that the database did not provide beneficial information that justified the cost involved in maintaining the database. Officials stated that as U.S. horse slaughter plants closed, the Slaughter Horse Transport Program received less funding, and thus they decided to cut these positions. However, the current paperwork system does not allow users to easily search the data for violations and evidence for enforcement, so tracking backtags is difficult. The area office can determine who received each backtag and when the tags were issued, but it does not track the tag beyond issuance to an owner.

"APHIS officials agree that an automated database where information could be entered and maintained for each horse shipped to slaughter would make investigating possible violations easier, however, officials stated that they preferred to focus their resources on compliance with regulations rather than a database that may not provide adequate benefit for the cost involved in developing and maintaining such a tracking system. Officials stated that they currently rely on the paperwork being returned from the foreign veterinarian, which should identify any horses that were being held in violation of the humane transport regulations. They do not, however, have a way to reconcile that all horses that were approved for shipping to slaughter were inspected." 

Indeed, documents and photographs obtained from a FOIA request revealed terrible suffering of horses during transport to slaughter when U.S. slaughter houses were in operation. 

Investigation after investigation by Animals Angels confirms that horses suffer terribly during the many times long and arduous journey to the slaughter house. www.animalsangels.org  There has never been "voluntary compliance" and APHIS has an abysmal record of enforcing – or, more accurately, not enforcing  – the transport regulations.    

Currently, as the 2011 GAO report admits, there are only 2 APHIS staff members assigned to enforce the equine transport regulations. "The two program officials stated that the program’s limited funding, particularly for travel, has significantly curtailed their ability to provide coverage at border crossings and to work with shippers and inspectors in foreign slaughtering facilities to ensure compliance with the transport regulation." Actually, Sonja Meadows, founder and executive director of Animals Angels, www.animalsangels.org, told an audience at the first International Equine Conference in Alexandria, Virginia in September, 2011 that APHIS only dedicates one staffer to enforcement of the equine transport regulations.  

There’s more….

One of the most significant findings discussed in detail in the OIG report that was basically ignored in the GAO report by receiving mention in merely 2 sentences without providing any detail, was OIG’s finding that:"current regulations do not outline effective controls over the distribution, use, and tracking of backtags. When officials drafted the regulations, they were informed that accredited veterinarians, who would be completing health certificates for slaughter horses being shipped across U.S. borders, would not be willing to apply backtags or oversee the application of backtags to the horses when they were prepared for loading. Although APHIS officials stated that they would have preferred to issue tags to an accredited veterinarian, they felt that their only option was to provide backtags to owners. Due to control weaknesses relating to these backtags, owners can transport uninspected horses that are not fit for shipment."

OIG elaborated that "owners can apply backtags to horses that were not examined and may not be fit to travel; that owners can circumvent humane handling regulations by designating horses as pleasure horses rather than slaughter horses; and that owners can use tags without being tracked by APHIS.

"Since owners apply the tags to horses they want to transport without verification by APHIS, they could apply the tag to a horse that was not examined and may not be fit to travel humanely.

…Owners have a financial incentive to transport sick or injured horses that can be presented as if they were fit to travel. If an owner/shipper can include a few extra sick or injured horses into loads of otherwise healthy ones, the profit margin goes up because more horses were shipped across the border at once."

OIG noted, "The APHIS field coordinator-who alone is responsible for administering this program in the field at every border crossing facility on both the Canadian and Mexican borders-stated that he has observed instances where it appears horses that do not meet transport regulations are being transported, yet were wearing backtags that are supposed to indicate that they are fit to travel.

Owners can also attempt to circumvent humane handling regulations by taking horses over the border without backtags. If horses are designated as pleasure horses or rodeo horses, then they require only basic health certificates and immunization records to cross the border. Once they are in a foreign country, they might then be sent to a slaughter facility without inspection by a USDA-accredited veterinarian or without the appropriate backtag and USDA shipping documents. As a result, owners may not truthfully designate their intentions when transporting horses for slaughter. APHIS officials stated that this practice is frequently used to get horses across the border without following humane handling regulations."

According to OIG, "The APHIS Slaughter Horse Transport Program Field Coordinator stated that foreign slaughter plants should question a load of U.S. horses that arrive without backtags and shipping documents, but that it was likely that they would simply accept the horses for slaughter.

"Due to these enforcement limitations, owners have little incentive to comply with regulations, pay their fines, and cease inhumanely handling horses bound for slaughter. During our visit to a border crossing facility, we witnessed two loads of horses, consisting of 68 horses, bound for slaughter at the facility even though the horses’ owner had not paid fines for humane transportation violations."

The OIG concluded that "the control weaknesses relating to the backtags and the transportation of horses for slaughter in foreign facilities were significant enough to prevent APHIS from ensuring that these tags are applied only to horses that are fit to travel, according to its regulations."

As a result of these findings, the OIG made the following recommendations:

Revise regulations or implement adequate controls to ensure that APHIS provides backtags to qualified personnel who can inspect horses bound for slaughter and apply, or oversee the application of backtags when approving transport documentation.

Revise Slaughter Horse Transport Program regulations to allow APHIS to deny shipping documents to individuals who repeatedly violate humane handling regulations and who have fines outstanding.

Develop and maintain a control (database or list) of all individuals who have violated the regulations of the Slaughter Horse Transport Program and have not paid the associated fines.

Without the implementation of these recommendations, not only is the new final ruling regulation unenforceable, but APHIS lacks the ability to enforce compliance of any of the regulations intended to ensure humane handling in the transport of horses to slaughter.

And finally, the 2011 GAO report revealed in a footnote on Page 12, concerns about the reliability of USDA’s count of horses sent to slaughter which states:

"Note: U.S. exports of horses intended for slaughter are unofficial estimates because official U.S. export trade data do not specify the quantity or value of horses exported for slaughter. Thus, while official U.S. trade data can be used to determine total U.S. live horse exports (the sum of horses exported for slaughter or other purposes, such as breeding and showing), an estimate of horses intended for slaughter can only be determined using Canadian and Mexican official trade statistics."

The USDA statistics for horses exported to Canada are reported only once a month, although the reports appear at least an entire month behind, and they do not bother to separate the horses exported for slaughter from those exported for other purposes. USDA Market News Reports does report his weekly statistics for both non-slaughter exported horses, as well as those exported exclusively for slaughter over the Mexican border.

John Langenegger is the USDA Officer In Charge (OIC), the employee responsible for reporting accurate export and import statistics in the USDA Market News Reports for both non-slaughter and slaughter horses exported to Mexico.

As James-Patton points out, "If the statistics he reports are not reliable statistics, then what statistics is he reporting and where is he getting his numbers?  Why is Langenegger, a USDA employee being paid by the taxpayers to report unreliable statistics?"

Without reliable statistics, one must question how can any government agency such as the OIG or the GAO perform a proper analysis and make valid recommendations on any horse slaughter issue, when USDA can’t even keep track of the numbers slaughtered and provide verifiable data?

One thing is certain: Each new report from government agencies reviewing the horse slaughter issue and the performance of USDA/APHIS, confirms their failure to enforce humane handling in transport of equines to slaughter.

For more on APHIS abysmal record of enforcement of the Commercial Transportation of Equines to Slaughter Act, read the Equine Welfare Alliance and Animal Law Coalition’s exhaustive analysis of the 2011 GAO report.

This new regulation will not change that. It is obvious that there is an urgent need for Congress to pass federal legislation to prohibit the transport of equines for slaughter, one of the recommendations of GAO.

For its part, the Humane Society of the United States has issued a call for citizens to report violators of the new regulation. This may be the only enforcement we can expect from the government’s euphemistically named "Commercial Transportation of Equines to Slaughter Act.