The revised bill is improved in the following respects:

1.   Removes the intrastate commerce exception as I had recommended.  This eliminates vulnerability to legal challenge under foreign trade treaties and other international commitments.  It also permits inclusion in the bill of a direct ban on slaughter for human consumption (see 2, below).

2.  Adds a direct prohibition on slaughter of horses for human consumption (sec. 5(a)(1)).  This would, in my opinion, permit closure under the bill's provisions of any slaughter facility that does not denature and label as unfit for human consumption any horse flesh it produces.

3.  Clarifies section 6(c) as I had suggested by adding the word "monetary" to make it clear there is no prior notice and hearing requirement for confiscation of horses in the possession of an alleged violator at the time of arrest.

4.  Adds detailed provisions on posting of bond to prevent permanent placement of confiscated horses pending trial.  (Sec. 6(d)(2)(B).)

5.  Adds a definition of the term "export."

The revised bill fails to correct, or inadequately addresses, the following flaws in the original bill:

6.  The Secretary is not given authority to utilize federal and state government resources outside the USDA in enforcing the Act. The revised bill continues to place the burden on the Secretary to consider specific aggravating and mitigating factors, while comparable federal statutes place the burden on the violator to show good cause why penalties should be remitted or mitigated.

The sponsors' "standard" and "common" practice responses explain nothing, particularly when there are federal statutes on the books that do it differently, as I pointed out in my December 2001 analysis.  (See Below)

                       6. Penalties and Enforcement.

                       (Section 6.(d) l.) Gives the Secretary of Agriculture exclusive authority to enforce the Act's criminal and civil penalties, and sets forth factors that the Secretary must consider imposing penalties. The provision states as follows:

                       IN GENERAL.‹The provisions of this Act shall be  enforced by the Secretary. In imposing penalties under Section 6, the Secretary shall take into account the seriousness of the violation, the culpability of the violator, and the violator's record of cooperating with the Government in disclosing the violation.

                       First, this provision should be rewritten to authorize the Secretary to utilize, in addition to USDA resources, the personnel, services, and facilities of other Federal agencies and of State law enforcement agencies. A model of such a provision can be found in section 1377 of title 16, United States Code, which provides for enforcement of the Marine Mammal Protection Act.

                       That statute, a copy of which is attached hereto as Appendix B, also contains detailed provisions concerning the issuance of warrants, arrest and seizure that might be considered as a model for inclusion in the American Horse Slaughter Prevention Act.

                       Second, unlike the enforcement provision of the American Horse Slaughter Prevention Act, quoted above, the Marine Mammal Protection Act does not include a listing of factors that the Secretary is affirmatively required to consider in imposing penalties. Instead, it provides: "Any such civil penalty may be remitted or mitigated by the Secretary for good cause shown." 16 U.S.C. §1375(a), emphasis added. It is not clear why it is necessary in the American Horse Slaughter Prevention Act to include such a list or to place the burden on the Secretary rather than the violator, which would appear to encourage reduction of penalties by an agency.

7.  While euthanasia of "horses past recovery" and "unplaceable horses" can now not be done by electrocution, a range of other inhumane, non-chemical methods are still permitted under the "in accordance with the most recent Report of the American Veterinary Medical Association's Panel on Euthanasia" clause of section 6(d)(3)(A).

  3. Euthanasia of Horses-

                              First, the phrase "injured, disabled or diseased past recovery" is not defined. The need for clear definitions and standards is critical, as 3.(A) mandates that one charged with enforcing the Act "shall" euthanize a confiscated horse that is "past recovery." Is a blind horse that is capable of living in an animal rescue facility disabled "past recovery"? Is a horse with a chronic, incurable disease but one which will afford the horse several years of relatively pain-free life "past recovery"?

                              Second, 3.(A) requires use of euthanasia methods that are "in accordance with" the Report of the American Veterinary Medical Association's Panel on Euthanasia (2000) ("Panel Report"); 3.(A) fails clearly to impose these or any other restrictions on the means of euthanasia. Furthermore, "in accordance with" is a vague and unsatisfactory standard. The Panel Report, for example, places numerous "agents" and "methods" of euthanasia into classifications of "acceptable, "conditionally acceptable," and "unacceptable." Would shooting a confiscated horse, a euthanasia method rated only "conditionally acceptable" for horses, be "in accordance with" the Panel Report?

                              Limiting the permissible means of euthanasia of confiscated horses to those rated "acceptable" by the Panel Report would be a step in the right direction, but not far enough. By using the term "methods" to identify authorized means of euthanasia, the bill appears to preclude use of an entire alternative category of euthanasia techniques that is actually preferred by the Panel Report. The Panel Report describes two distinct categories of euthanasia, one using "physical methods" and the other using chemical "agents." The term "methods," used exclusively in the bill, is used in the Panel Report generally to refer only to the following "physical methods": penetrating captive bolt, gunshot, cervical dislocation, decapitation, electrocution, microwave irradiation, kill traps, thoracic compression, exsanguination, stunning, and pithing. The Panel Report also states that "[s]ince most physical methods involve trauma, there is inherent risk for animals and humans." The report characterizes most physical methods as only "conditionally acceptable for euthanasia." It classifies one of these "physical methods," the penetrating captive bolt, as an "acceptable" and "effective" method for euthanizing horses "in slaughter-houses, in research facilities, and on the farm when use of drugs is inappropriate" - but those are not the circumstances the bill addresses.

                              By contrast, the Panel Report uses the term "agents" to refer to chemical and pharmaceutical means of euthanasia. Barbiturates, or potassium chloride in conjunction with general anesthesia, are rated "Acceptable" for horses. The Panel Report describes one of these, intravenous injection of a barbituric acid derivative, as the "preferred" means of euthanasia for horses. Yet as currently written, the bill could be interpreted to preclude use of this preferred "agent" while permitting use of the penetrating captive bolt or even gunshot "methods,"even though the Panel Report says "[g]unshot should not be used for routine euthanasia of animals in animal control situations, such as municipal pounds or shelters."

                              The bill authorizes "any individual charged with enforcing this Act" not only to order the euthanasia of "past recovery" and "unplaceable" horses, but also to perform the euthanasia. As written, most euthanasia under this provision is likely to be by gunshot. Under existing law, it is unlawful for a non-veterinarian to possess or administer the drugs used for lethal injection. Thus, except in the rare case where the individual charged with enforcing the Act is a veterinarian, lethal injection would be off limits, leaving gunshot as the only practical option. In addition, in the case of "past recovery" horses, the bill should be amended to require that a veterinarian make the determination whether the horse is "injured, disabled, or diseased past recovery."

                              To correct these deficiencies, the provision should be revised to read:

                                     (3) EUTHANASIA OF HORSES. -

                                     (A) HORSES PAST RECOVERY. - The Secretary or any individual charged with enforcing this Act shall order or perform the immediate euthanasia of any confiscated horse when such horse is facing imminent death due to injury, disability or disease. Euthanasia shall be performed only by administration of agents rated "Acceptable" for horses in the Report of the American Veterinary Medical Association's Panel on Euthanasia (2000), and state and local laws.

                                      (B) UNPLACEABLE HORSES. - The Secretary or any individual charged with enforcing this Act may order or perform the euthanasia of any confiscated horse when placement at an animal rescue facility or other suitable facility, as described in this section, is not possible within 30 days of a conviction pursuant to this Act of the animal's owner or the person who physically possessed the animal at the time of confiscation, or within 30 days of the animal's owner surrendering the animal. Euthanasia shall be performed only by administration of agents rated "Acceptable" for horses in the Report of the American Veterinary Medical Association's Panel on Euthanasia (2000), and state and local laws.

                              Consistent with these changes, the definition of the term "euthanasia" in section 4 should be revised as follows:



                                      (1) EUTHANASIA.-The term "euthanasia" means to kill an animal humanely by chemical or other means that immediately renders the animal unconscious, with this state remaining until the animal's swift death.

8.  While the revised exemption for designated law enforcement official purposes would not permit officials to engage directly in slaughter of horses for human consumption, it would permit them to "knowingly cause" such slaughter.  (See Section 8(b).)  This seems unnecessary for effective "sting" operations.

However, if law enforcement will oppose the bill unless it exempts official participation in slaughter for human consumption, compromise on this point is warranted.

The revised bill introduces some new problems.  Specifically, the revised bill:

9.  Defines "slaughter" to mean "the commercial slaughter of a horse."  It is unclear why the restrictive term "commercial" is necessary.

The sponsors' constitutional explanation for qualifying "slaughter" with "commercial" is reasonable, though including "commercial" is not necessary to the statute's validity; if it is to be included, I would  like to see the term "commercial" defined in the statute so that it is clear it covers the "one horse" for payment scenario.

10.  The word order in finding 6 of section 2 results in ambiguity as to whether the clauses "outside of the United States," "outside the United States," and "inside or outside the United States" modify  "slaughtering" or "for human consumption."  The apparent intent is to modify "for human consumption," and the finding should be re-written to make this unambiguous.

The drafting ambiguity in the finding is not likely to prove troublesome in practice, but there is something to be said for clarity for clarity's sake.