Nonambulatory Livestock and the Humane Methods of Slaughter Act

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Revelations in early 2008 that cattle were mistreated at a California slaughter plant raised
questions about enforcement of the Humane Methods of Slaughter Act. Evidence emerged that
the plant had permitted nonambulatory (“downer”) cattle to be slaughtered for human food, also
potentially jeopardizing food safety. The U.S. Department of Agriculture (USDA) announced the
largest meat recall ever, alerted school food authorities to destroy any unconsumed products from
the plant, and launched an investigation. Since then, animal welfare activists have alleged ^th
additional cases of mistreatment at livestock markets. The 110 Congress responded with
hearings and proposals to alter current policy, but no statutory changes were enacted. New bills ^th
are possible in the 111 Congress.

Backgr ound ..................................................................................................................................... 1
Inspection Basics.............................................................................................................................2
The Humane Methods of Slaughter Act..........................................................................................2
Nonambulatory Disabled Cattle......................................................................................................3
Critical Views..................................................................................................................................4
OIG Reports..............................................................................................................................4
GAO Report on HMSA Enforcement.......................................................................................5
Inspectors Union Criticism.......................................................................................................5
Other Views...............................................................................................................................5
In Congress......................................................................................................................................6
Author Contact Information............................................................................................................7

On February 17, 2008, USDA announced that Hallmark/Westland Meat Packing Co. of California
was recalling 143 million pounds of fresh and frozen beef products dating to February 1, 2006.
About 50 million pounds were distributed to the school lunch and other federal nutrition
programs in at least 45 states. This largest U.S. meat recall ever came after USDA’s Food Safety
and Inspection Service (FSIS) found that the facility did not always notify it about cattle that had
become nonambulatory after they had been inspected, but before slaughter for food. FSIS rules
prohibit most nonambulatory cattle because they are more likely to have bovine spongiform
encephalopathy (BSE).
The recall was so-called Class II, indicating a remote possibility that the products could cause
adverse health effects, but USDA said the recall was necessary because its rules deem the animals
unfit for human food. (Most large recalls have been Class I, with a reasonable probability of
serious health consequences or death.) Officials asserted, however, that findings of BSE are
extremely rare in the United States and cited the effectiveness of other BSE safeguards—
including a ban on feeding most cattle parts back to cattle, and the removal of potentially
infectious material from all older animals. They said most of the recalled beef likely had been
consumed, and that school and other domestic feeding sites had been instructed to hold and
destroy all remaining products.
The agency suspended inspection at the plant, which was not expected to reopen, on February 4,
2008, three days after it voluntarily ceased operations. The matter came to light when the
Humane Society of the United States (HSUS) released videotapes of what it described as ¹
employees inhumanely handling downer cattle before slaughter. USDA inspectors reportedly had
failed to detect that these animals became nonambulatory after they received antemortem
inspection—causing some to question the use or effectiveness of recent increased appropriations
from Congress for more aggressive enforcement of the federal Humane Methods of Slaughter Act
(HMSA; 7 U.S.C. §§ 1901 et seq.).
In early May 2008, HSUS notified the Secretary of Agriculture that it had collected new evidence
of abuse of nonambulatory cows and pigs at livestock auction markets in Maryland,
Pennsylvania, New Mexico, and Texas. HSUS asserted that mistreatment of so-called downers is ²
“systemic” and not limited to slaughterhouses. USDA promised to address the allegations. The
Livestock Marketing Association (LMA) issued a statement arguing that the “overwhelming
majority” of its members humanely handle their animals out of “both a humane, and economic
necessity” and cited its work with the industry to ensure proper handling, but criticized HSUS for ³
promoting an anti-meat agenda.

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HSUS called for expanded government oversight of animal handling throughout the marketing
chain. It also criticized USDA for not fulfilling a requirement in § 10815 of P.L. 107-171, the
2002 farm bill, for a report to Congress on the scope, causes, and treatment of nonambulatory
livestock, and for humane handling regulations if the report deems them necessary. USDA noted
that it had collected and published data on the number of such livestock and was completing work
on causes and handling practices regarding dairy cattle, to appear in a peer-reviewed journal in ⁴

2008.

Federal law requires FSIS inspectors to be present at all times meat and poultry slaughter plants
are operating. Among other requirements, an inspector must observe every live animal before
slaughter, both at rest and in motion, to detect signs of any disease or health problems that might
render the animal unfit for human food. Plants must notify FSIS when animals first arrive, and the
“antemortem” inspection is to be conducted on the day of their slaughter. Although inspectors are
not stationed in the antemortem areas for the entire day, they are to return randomly after initial
inspection to verify proper handling of the animals. This contrasts with “postmortem” inspection,
where inspectors are stationed constantly along the processing lines inside the slaughter plants to ⁵
examine each carcass and monitor other processing activities.

The HMSA’s key provision states: “No method of slaughtering or handling in connection with
slaughtering shall be deemed to comply with the public policy of the United States unless it is
humane ... [meaning] ... (a) in the case of cattle, calves, horses, mules, sheep, swine, and other
livestock, all animals are rendered insensible to pain by a single blow or gunshot or an electrical,
chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast, ⁶
or cut.”
To implement the act, FSIS issued regulations (at 9 C.F.R. parts 313 and 500), and a directive
(6900.2) for inspection personnel covering the proper maintenance of pens and rampways; how to
handle livestock during unloading and movement to the stunning area, including the use of
electric prods and other instruments; and the methods of stunning the animals. For each, the
directive spells out how personnel are to verify compliance and specifically what to do if there is
noncompliance. There are approximately 6,200 federally inspected meat and poultry slaughtering
and processing establishments. More than 900 of them slaughter livestock and all are subject to

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the HMSA, according to USDA; approximately 600 of them slaughtered nearly 34 million cattle
in 2007.

Until early 2004, FSIS required that inspectors consider all seriously crippled livestock (cattle and
other species) and those commonly known as “downers” to automatically be identified as “U.S.
Suspects”—i.e., possibly having a disease or condition that would require their condemnation.
FSIS required that an agency veterinarian examine them both before and after slaughter, and that
they be slaughtered separately, before being cleared for food. After a cow imported from Canada
was found to have BSE in late 2003, FSIS issued a number of rules aimed at keeping BSE-
infected beef from entering the food supply, including a prohibition on the slaughter of any
nonambulatory cattle, regardless of the reason, or of when they became disabled.
Specifically, an interim final rule on January 12, 2004 (69 Federal Register p. 1873), stated,
“non-ambulatory disabled cattle shall be condemned and disposed of” in accordance with other
FSIS regulations, including that they be humanely euthanized. The interim rule also for the first
time explicitly defined nonambulatory disabled livestock to be those “that cannot rise from a
recumbent position or that cannot walk, including, but not limited to, those with broken
appendages, severed tendons or ligaments, nerve paralysis, fractured vertebral column, or
metabolic condition.” FSIS based this rule change on findings in Europe, where BSE was far
more prevalent, that nonambulatory cattle were much more likely to harbor the BSE agent than
ambulatory cattle, and that “typical clinical signs associated with BSE cannot always be observed
in non-ambulatory cattle infected with BSE because the signs of BSE often cannot be
differentiated from the typical clinical signs of the many other diseases and conditions affecting
non-ambulatory cattle” (69 Federal Register p. 1870).
On July 13, 2007, FSIS modified its rule to say that “FSIS inspection personnel will determine
the disposition of cattle that become non-ambulatory after they have passed ante-mortem
inspection on a case-by-case basis” (72 Federal Register p. 38729). In the preamble to the rule,
the agency said a notice to its personnel—issued after the January 2004 interim rule—already was
directing FSIS veterinarians to permit such animals to be slaughtered, so long as the veterinarian ⁷
could verify that the animal had suffered an acute injury (e.g., a broken leg). However, the
agency also reaffirmed its earlier findings that BSE clinical signs cannot always be observed in a
nonambulatory animal even though BSE was much more prevalent in such animals. Thus, its
general ban on their use in food—with this noteworthy exception—would be continued by the
final rule.
In an effort they said could help to rebuild market confidence, the American Meat Institute, the
National Meat Association, and the National Milk Producers Federation petitioned FSIS on April
22, 2008, to again amend the rules to ban nonambulatory disabled cattle from the meat supply
under any circumstances. FSIS published a proposed rule to do so in the August 29, 2008,
Federal Register; it had a 30-day public comment period. The rule had not been published in final
form as of late December 2008.

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USDA’s enforcement both of the ban on nonambulatory cattle and of the humane slaughter law
has long been at issue. A January 2006 audit report by the USDA Office of Inspector General
(OIG) was highly critical of a number of FSIS antemortem inspection procedures. These included
what OIG said was the inconsistent application of procedures: for example, at 2 of 12 slaughter
plants OIG visited, 20 of the 29 nonambulatory animals slaughtered were downers “with no ⁸
documentation of any acute injury.”
OIG also reported that, from 1995 until July 2005, when the policy was discontinued, FSIS
inspectors in some plants were examining only 5%-10% of live cattle both at rest and in motion;
the remainder were observed only at rest. The 33 plants subject to this alternative procedure were
to be those with good compliance records that were killing primarily younger domestic animals,
not likely to be at risk for BSE. However, due to inadequate enforcement and documentation,
some older cattle at these plants did not receive full inspection before slaughter, according to OIG.
Since the report, a number of critics continue to assert that the agency’s antemortem policies are
inconsistently applied and enforced among slaughter plants, and that such inspections often ⁹
involve only cursory views of animals in large groups, not individually.
In November 2008, OIG issued another audit report on what had occurred at Hallmark, whether
the events were isolated or systemic, and how effective FSIS’s controls were over several other ¹⁰
BSE-related safeguards required of plants. In this audit, OIG determined that Hallmark
personnel had taken deliberate actions to bypass required inspections, and that FSIS inspectors
did not comply with all inspection procedures.
However, after looking at 10 other plants that also slaughter cull cows, the OIG concluded that
“nothing came to our attention to indicate that unsuitable animals were passed for slaughter” or
that systemic inhumane handling incidents were occurring at these plants. Thus, the events at
Hallmark did not represent “a systemic failure of the inspection processes/system as designed by
FSIS,” but management controls can be strengthened to minimize such occurrences in the future.
These include the need for a supportable, risk-based methodology for assigning inspection staff, a
reassessment of the effectiveness of the agency’s supervisory processes, improvements in
inspection and supervisory staff training, and strengthening of ante-mortem and related inspection ¹¹
procedures, among other things.

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A January 2004 report by the Government Accountability Office (GAO) concluded that
incomplete and inconsistent inspection records had made it difficult to determine the extent of
humane handling and slaughter violations; that FSIS took inconsistent enforcement actions to
address noncompliance; and that it lacked data on numbers of inspectors and time devoted to ¹²
HMSA enforcement.
Following release of the video showing inhumane treatment, the meat inspectors’ union and a
consumer advocacy group charged that inspectors at Hallmark were specifically instructed not to
visit cattle pens before slaughter. Only the FSIS veterinarian-in-charge could check the animals
for humane handling, and “[h]e was absent most of the time.” The letter argued that slaughter
plants often have inspection vacancies, requiring off-line inspectors and even the FSIS
veterinarian to work on-line at essential post-mortem inspection activities, reducing oversight of
holding pens. The letter also charged, among other things, that FSIS veterinary positions created
specifically to monitor humane practices “are not always filled” and that such veterinarians are
often “redirected to perform other tasks not even remotely associated with humane handling ¹³
issues.”
The suitability of downers was discussed extensively at a February 28, 2008 hearing on Hallmark
before the Senate Appropriations subcommittee on agriculture. Secretary of Agriculture Edward
T. Schafer argued that at times an animal can be injured in a fall between antemortem inspection
and the plant’s killing station, and that a veterinarian should be able to examine and approve it for
food if it is not diseased. Humane Society witness Wayne Pacelle countered that injuries and
diseases are often interrelated, making it challenging if not impossible even for a trained inspector
to determine whether the animal is safe to eat. Studies also indicate that downers are much more
likely to harbor not only BSE but foodborne pathogens like e. Coli and Salmonella, he argued.
USDA’s former BSE expert also reiterated USDA’s own declaration (see pages 3-4) of the
difficulty in determining whether a cow has BSE; often the BSE is first suspected through
subsequent testing. “Neurological, metabolic or other diseases which affect coordination and
other aspects of gait often predispose an animal to injuries such as broken limbs or soft tissue
damage. If the animal is then down because of a broken leg, or torn ligament, the injury may be
the prominent or sole presenting sign. Without a complete diagnostic work up and history of
disease progression the true underlying cause of the nonambulatory condition may be impossible ¹⁴
to ascertain.”

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A number of committees held hearings during 2008 on Hallmark and related matters. Several bills
were offered seeking to address humane treatment and/or other inspection issues. For example, S.
394 and H.R. 661 would have required USDA to regulate “the humane treatment, handling, and
disposition of all nonambulatory livestock by covered entities, including a requirement that
nonambulatory livestock be humanely euthanized.” Such entities would have been expanded
beyond slaughter establishments to include stockyards, market agencies, and dealers. The bill
would have applied not only to cattle but also to any sheep, swine, goats, horses, mules, or other
equines. Another bill, S. 2770, would have banned the slaughter of nonambulatory livestock for
human food; establish gradually increasing penalties for plants that do so or that fail to comply
with the HMSA; and require USDA to publish, in final form, rules it proposed in 2006 to disclose ¹⁵
the names of all retailers that received recalled meat or poultry.
A ban on the slaughter of nonambulatory cattle for human food had been attached to a version of
the fall 2008 economic stimulus package, the Economic Recovery Act, 2008 (S. 3604). However,
the measure did not clear the full Senate.
Past Congresses had attempted to address humane oversight in a number of past, mainly
appropriations, acts. After a number of major news stories reported continuing abuses at
slaughterhouses in 2000, Congress, in the 2001 Supplemental Appropriations Act (P.L. 107-20),
directed USDA to spend not less than $1 million to enforce the act. USDA in turn allocated $1.25
million to hire 17 newly established District Veterinary Medical Specialists exclusively to oversee
enforcement. Lawmakers next included, in the 2002 farm law (in § 10305), a resolution urging
USDA to fully enforce the act and to report the number of violations to Congress annually.
USDA’s FY2003 appropriation (in P.L. 108-7) included an increase of $5 million for FSIS to, as a
Senate report stated, hire “50 additional inspection personnel to work solely on HMSA
enforcement through full-time ante-mortem inspection, particularly unloading, handling, stunning
and killing of animals at slaughter plants.” The Senate Appropriations Committee noted in its
report (S.Rept. 107-223) that it was “extremely concerned” that FSIS did not have adequate
inspection personnel dedicated to checking for or reporting HMSA violations, and it questioned
the effectiveness of simply instructing all inspectors to stop production when a violation is
observed.
Subsequent appropriations continued and then increased designated funding for HMSA
enforcement, which now is at 63 positions and $5 million annually. Appropriators also have
provided a total of at least $10 million over several years since FY2005 to incorporate FSIS’s
“Humane Animal Tracking System” into its field computer systems.

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