In section 2, the finding in paragraph (6) concerning existing legislation in California, Illinois and Texas is factually inaccurate. None of these states has "passed legislation that . . . prohibits the consumption of horses or horseflesh." Rather, they prohibit the slaughter of horses or sale of horseflesh intended for human consumption. The finding would be more accurate if it stated: "California, Illinois and Texas have passed legislation that restricts or prohibits the slaughter of horses for human consumption or sale of horseflesh for human consumption."

The first hint that the bill would exempt and therefore not prohibit purely intrastate transport and sale of horseflesh for human consumption or horses for slaughter for human consumption comes in the preamble to the Purposes section (§3), which states: "The purpose of this Act is to ensure that horses in the United States are not slaughtered for human consumption to satisfy consumer demand outside the United States . . ." (Emphasis added.) This hint is expressly confirmed in Section 9(1), which provides:

Except as provided in section 5, nothing in this Act shall be construed to affect the regulation by any State of its horse population or to affect the slaughter of horses and human consumption of horseflesh that is lawful under applicable State laws and regulations.1 (Emphasis added.)

On first inspection, this exemption to allow intrastate commerce in horseflesh or live horses intended for slaughter for human consumption might appear to be no more than an inconsequential bow in the direction of states’ rights, even perhaps a precaution against legal challenges to the bill as an attempt by Congress to act in excess of its constitutional power to regulate interstate commerce. After all, as recited in the findings section of the bill, currently all slaughtering of horses for human consumption that occurs in the United States is exclusively for foreign consumption and therefore the form of commerce involved is foreign and interstate, not intrastate. However, the exemption may have the unintended effects of weakening the Act’s enforceability and exposing it to legal challenge under international trade agreements.

The Intrastate Commerce Exemption May Weaken the Act’s Enforceability.

As noted above, section 9(1), when read together with section 5, would leave an individual state free to permit transport and sale of horses for slaughter for human consumption and transport and sale of horseflesh for human consumption so long as the entire process, from acquisition of the horse to slaughter to sale and consumption of the horseflesh, takes place within that state. To make this exemption possible, federal law cannot make it illegal under all circumstances to slaughter a horse for human consumption. It is here that the problem with the enforceability of the Act’s prohibitions applicable to interstate and foreign commerce in horses for human consumption arises.

In order to preserve the theoretical possibility of lawful intrastate commerce in horses for human consumption, the interstate and foreign commerce prohibitions of the bill do not include a prohibition on the very act the bill is intended to stop: slaughtering a horse for human consumption.

If the bill flatly prohibited slaughter of horses for human consumption, whether the market is intrastate, interstate, or foreign, law enforcement agencies could simply shut down all horse slaughter facilities that did not denature or clearly label horsemeat as not for human consumption. But if horse slaughter facilities producing meat capable of sale for human consumption can remain open for business under this loophole, enforcement must focus on the acts of sale, purchase, and transport of horses prior to slaughter, or of horseflesh after slaughter. Such cases are harder to win because conviction requires proof of intent at points in the process several steps removed from the actual slaughter. To convict a person apprehended in the act of selling, purchasing, or transporting a horse within a single state, for example, would require proof not only that the person intended that the horse be slaughtered for human consumption, but also intended that the consumption occur outside of the state. To convict a person apprehended in the act of selling, buying, or transporting within a single state un-denatured horseflesh would require proof that the person knew the product’s ultimate destination was outside the state.

By interfering with the enactment of a direct prohibition on slaughter, the intrastate commerce exemption would thus make enforcement of the Act’s central purpose more difficult. The exemption might nonetheless be justified if it were thought necessary to avoid legal challenges to the Act as an unconstitutional attempt by Congress to regulate purely intrastate commerce, particularly in the aftermath of the Supreme Court’s decision in United States v. Lopez, 514 U.S. 549 (1995), which signaled a retrenchment from earlier expansive readings of Congress’ interstate commerce power. Such concern does not, however, appear warranted. See Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000), cert. denied 2001 U.S. LEXIS 1130 (collecting post-Lopez cases upholding federal wildlife and natural resource protection statutes that regulate intrastate economic activity).

The Intrastate Commerce Exemption May Be Inconsistent with the International Trade Obligations of the United States.

The bill’s exemption for intrastate trade in horses and horseflesh for human consumption would establish a legal regime in which some U.S. domestic companies are allowed to trade in horses and horseflesh for human consumption within the United States, albeit only within a single state, while foreign companies are prohibited from any such trade anywhere in the United States. Such discrimination against foreign business may be inconsistent with the obligations of the United States under various international trade agreements, notwithstanding the finding to the contrary in the bill. The specifics of particular international agreements is beyond the scope of this memorandum. But a comparison of the "American Horse Slaughter Prevention Act" with recent Congressional enactments that expressly seek to harmonize with such international obligations is not encouraging.

Section 2 of the bill sets forth the following finding:

(7) The imposition of a ban on the sale of horseflesh for human consumption, regardless of its source, is consistent with the international obligations of the United States because it applies equally to domestic and foreign producers and avoids any discrimination among foreign sources of competing products. Such a ban is also consistent with provisions of international agreements to which the United States is a party that expressly allow for measures designed to protect the health and welfare of animals and to enjoin the use of deceptive trade practices in international or domestic commerce. (Emphasis added.)

Because of the intrastate commerce exemption in section 9, the two italicized passages do not accurately describe the bill’s ban on the sale of horseflesh for human consumption. First, if the source and the consumer were both in the same state, the bill would not in fact ban sale of horseflesh for human consumption Second, the ban would not apply equally to domestic and foreign producers. All foreign producers would be banned from selling horseflesh for human consumption, anywhere in the United States. Domestic producers, by contrast, would not be subject to the ban unless they engaged in interstate commerce. So long as they sold horseflesh exclusively for human consumption in the same state where the horse was purchased and slaughtered and such conduct was lawful under state law, the federal ban would not apply.

The "Dog and Cat Protection Act of 2000," codified at 19 U.S.C. §1308, prohibits the import, export, sale or transportation of dog or cat fur products in the United States. That Act included an identically-worded finding concerning consistency with the international obligations of the United States that appears to have been the model for the finding in the Morella bill. Unlike the Morella bill, however, the "Dog and Cat Protection Act of 2000" contains no intrastate commerce exemption. As a result, the Act’s ban on commerce in dog and cat fur products truly applies to all such products, "regardless of their source" and "applies equally to domestic and foreign producers."

Another example of an attempt by Congress to protect animals in a manner consistent with the international obligations of the United States is the "Wild Bird Conservation Act of 1992," codified at 16 U.S.C. §4901 et seq. That law generally prohibits importation into the United States of specified exotic bird species, whether by U.S. or foreign persons. And, rather than authorizing states to permit activities within their borders that would be prohibited if done in interstate or foreign commerce, the "Wild Bird Conservation Act of 1992" authorizes state regulation of the sale, transfer, or possession of exotic birds only if such regulation "(1) does not authorize any sale, transfer or possession of exotic birds that is prohibited under" federal law and "(2) is consistent with the international obligations of the United States." 16 U.S.C. §4916.

In sum, the Morella bill’s intrastate commerce exemption is objectionable for two reasons. First, it weakens enforcement by precluding a flat nationwide ban on slaughter of horses for human consumption. Second, by discriminating between foreign and intrastate domestic producers, the intrastate commerce exemption may be inconsistent with U.S. international obligations. A direct ban on slaughter for human consumption should be added to the bill, and a provision referring to state law modeled on the one in the "Wild Bird Conservation Act of 1992" should be substituted for the current intrastate commerce exemption. Finally, conforming changes should be made in section 3, Purposes.

Section 4 includes a detailed definition of the term "import" but does not define the term "export." A suitable definition should be added.

1. Penalties. Section 6 of the bill provides, in subsections (1) and (2), respectively, for criminal and civil penalties for violations of the prohibitions in section 5. Both subsections also provide for confiscation of horses in the alleged violator’s possession at the time of arrest "if said horses are intended for slaughter." However, subdivision (2), the civil penalties provision, adds the following notice and hearing requirement:

(C) NOTICE; HEARING. - No penalty may be assessed under this subsection against a person unless the person is given notice and opportunity for a hearing with respect to such violation in accordance with section 554 of title 5, United States Code.

To avoid any possible construction in which the confiscation authorized in subsection (2)(A) is treated as a "penalty" subject to subsection (2)(C)’s prior notice and hearing requirements, the word "monetary" should be added before the word "penalty" in subsection (2)(C). Requiring notice and a hearing before horses being transported to slaughter could be confiscated would be unworkable, and is not required as a matter of due process. Where there is sufficient evidence to establish probable cause to believe a crime is being committed and make an arrest, there is no requirement for pre-seizure notice and hearing. It is sufficient that the bill provides, in subsection 6 (3)(B), that the placement of confiscated horses shall be temporary pending prosecution, so that if after criminal trial or administrative hearing the alleged violator is not shown to have committed a violation, the horses can be returned to that person. Such return is in fact mandated by section 2465(a) of title 28, United States Code.

2. Enforcement.

Subsection (3)(c) of section 6 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 in imposing penalties. The provision states as follows:

(A) 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 sometimes criticized as too close to the industry it oversees.

Subsection 6(3) of the Act, titled "Enforcement," provides for euthanasia of a confiscated horse in two sets of circumstances: when a horse is "unplaceable" and when it is "past recovery." The provision currently reads as follows:

(C) EUTHANASIA OF HORSES. -

(i) UNPLACEABLE HORSES.— 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 injured, disabled or diseased past recovery. Methods used shall be in accordance with the Report of the American Veterinary Medical Association’s Panel on Euthanasia (2000), and state and local laws.

(ii) HORSES PAST RECOVERY.- 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.

As a purely editorial matter, it appears that the headings on subdivisions (i) and (ii) have been reversed. On a substantive level, this provision raises several concerns.

First, the phrase "injured, disabled or diseased past recovery" is not defined. The need for clear definitions and standards is critical, as subdivision (i) 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, subdivision (i) 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"); subdivision (ii) 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."

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

(C) EUTHANASIA OF HORSES. -

(i) 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.

(ii) 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.

Section 9(2) of the bill, by cross-reference to subparagraph (B) of section 4(5) [the reference should probably be to section 4(6)] exempts offers and agencies of federal, state, and local government from the bill’s prohibitions if the purpose is solely for purposes of enforcing the Act. This is a laudable objective, which enables law enforcement to engage in undercover "sting" operations to establish proof of violations. However, the language should be supplemented by a prohibition on government collaboration in the actual slaughter of horses intended for human consumption. Enforcement can be achieved without permitting and abetting the very action the Act is intended to curb.

In its current form, the Morella bill is seriously flawed. The bill’s exemption for intrastate commerce comes at a heavy price, because it precludes an outright prohibition on slaughter of horses for human consumption. This will require enforcement to focus on steps in the process at which proof of violation is more difficult. The intrastate commerce exemption may also be inconsistent with the international trade obligations of the United States, although this concern is largely theoretical under the present realities of the horse-for-human-consumption market.

The penalties provision requires clarification to assure that notice and hearing is not required before horses stopped in transit to slaughter can be confiscated. The enforcement provision should authorize the Secretary of Agriculture to make use of federal and state government resources outside the USDA in enforcing the Act. It also inexplicably places the burden on the Secretary to consider specific aggravating and mitigating factors, while comparable legislation places the burden on the violator to show good cause why penalties should be remitted or mitigated.

The provisions governing euthanasia of "unplaceable" and "past recovery" horses lacks definitions of critical terms. It would permit use of euthanasia methods not favored by the American Veterinary Medical Association, even while invoking that organization’s name.

Finally, the exception for federal law enforcement purposes needs to be tightened to prohibit law enforcement officers who engage in undercover or "sting" enforcement efforts from permitting or abetting the actual slaughter of horses intended for human consumption.