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Regulating the Military's Survival Skills Training Under the Animal Welfare Act

Salma Mavany


29 BCEALR 45 (2001)
Publish Date:
2001
Place of Publication: Boston College Environmental Affairs Law Review
Printable Version

Regulating the Military's Survival Skills Training Under the Animal Welfare Act

 

Copyright 2001 by Boston College Law School

Reprinted from 29 B.C. Envtl. L. Rev. 45-68 (2001) with permission.

Abstract: The United States Military tortuously kills farm animals when teaching soldiers survival skills. Presently, there is no law that specifically protects these farm animals. This Note analyzes whether the Military's animal cruelty can be regulated under the Animal Welfare Act (AWA). The AWA requires the Secretary of Agriculture to promulgate standards to govern the humane handling, care, treatment and transportation of animals by dealers and research facilities. To be protected under the statute, farm animals used in survival skills training must fall under Congress's definition of "animal." Next, the Military must be classified as either an "animal dealer" or a "federal research facility." This Note argues that Military training grounds must be regulated as "federal research facilities" because animals are being used not just for food, but also for the purpose of teaching, experimenting, or researching soldiers' survival skills to defend themselves in the wild, and behind enemy lines.

INTRODUCTION

"[K]ill a fowl either by cutting its head off or by placing its head under a strong stick, placing both your feet on either end of the stick ... and pulling vigorously until its head is pulled off." [FN1] This is what a soldier will find in a current Army course manual for survival skills training. [FN2] In 1997, the Department of Defense reported that the Air Force killed more rabbits in survival skills courses than in all its research facilities combined. [FN3]

The People for the Ethical Treatment of Animals (PETA) has received numerous reports of animal cruelty by the United States Military (Military) in survival skills training, where animals are purchased for the purpose of being killed, rather than being found and hunted in the wild, which would provide a more realistic training. [FN4] For example, at the U.S. Army Dugway Proving Ground in Utah, animals were transported to training grounds by truck where soldiers ambushed the vehicle, then released, chased, captured, and killed them. [FN5] An eyewitness reported that soldiers at the Fairchild Air Force Base were "required to stroke the rabbit to calm it, then bash it on the head ... the rabbits don't always die with the first blow." [FN6]

PETA estimates that more than 10,000 animals, including chickens, rabbits, and goats are purchased each year for Military survival skills training. [FN7] Soldiers are taught to kill, cook, and eat the domesticated purchased animals, rather than to find them out in the wild. [FN8] Presently, no United States law protects these suffering farm animals from cruel practices in survival skills training. [FN9] These same animals, however, if used for biomedical experiments in a traditional research laboratory, would be protected by numerous laws. [FN10]

This Note examines whether the Military can be classified as either a "research facility" or as an "animal dealer" under the Animal Welfare Act (AWA), so that the Military's use of animals in the survival skills training courses can be regulated. Presently, the United States Department of Agriculture (USDA)--the agency responsible for executing the AWA--has not regulated Military survival skills training. [FN11] There are procedural roadblocks, such as lack of standing, that prevent a litigant from challenging the USDA's refusal to regulate survival trainings. [FN12] In addition, the AWA does not provide a private right of action; the litigant must find a valid cause of action under section 702 of the Administrative Procedure Act, (against the USDA or the Military) which entitles any person suffering a legal wrong because of agency action (or inaction) to seek judicial review. [FN13]

This Note focuses on the substantive roadblocks to the AWA. It appears that the USDA cannot regulate the Military as an animal "dealer" under the AWA because the USDA has impermissibly excluded public agencies from this definition. [FN14] Moreover, the USDA has impermissibly focused on regulating only dealers who directly sell animals or who buy and then resell them wholesale, despite the broad language in the statute. [FN15] Thus far, there has been no case law on the substantive issue of whether the Military qualifies (or fails to qualify) as a research facility or as an animal dealer under the AWA.

Nonetheless, it appears that the Military may be regulated as a federal research facility. A closer reading of the statute reveals that rabbits used in survival skills training may be regulated if they are used for purposes other than solely for meat, such as for teaching, research, or experimentation. [FN16] Other farm animals used in survival skills training cannot be regulated under the AWA, unless Congress redefines "animal." [FN17] If the Military survival skills training grounds are found to be federal research facilities where rabbits are used not only for food, but also to teach soldiers how to defend themselves behind enemy lines, then the AWA should regulate the humane handling, transportation, and treatment of these rabbits. [FN18] This argument would prevail if either Congress or the USDA creates a definition of research and experimentation that includes social research practices as well as biomedical research. [FN19]

I. BRIEF SUMMARY OF THE AWA

A. Role of the United States Department of Agriculture

The AWA requires the Secretary of Agriculture (Secretary) to promulgate standards to govern the "humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors." [FN20] The animals and activities that can be regulated under the AWA must either be in interstate or foreign commerce, or substantially affect it. [FN21] As such, the AWA gives the USDA the power to regulate the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations who use them for research, experimentation, exhibition, or for other limited purposes. [FN22]

B. Animals Regulated Under the AWA

In order for an animal to be protected by the Secretary's standards, that animal must first fall under the AWA's definition of animal. [FN23] The AWA defines "animal" to include: "any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet." [FN24] Animals exempted from regulation include horses not used for research purposes and other farm animals used for or intended for use as food or fiber. [FN25]

C. Persons and Facilities Regulated Under the AWA

In order to be regulated by the AWA, one must be a dealer, exhibitor, research facility, transporter, or an intermediate handler. [FN26] This Note only addresses regulations affecting animal dealers and federal research facilities.

1. Regulating Animal Dealers

Congress, in the AWA, defines "dealer" as:

[A]ny person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet .... [T]his term does not include .... any person who does not sell, or negotiate the purchase or sale of any wild or exotic animal and who derives no more than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats, during any calendar year. [FN27]

The AWA defines dealer broadly by allowing "any person" who meets certain requirements to fall under the definition. Despite Congress's broad definition of "dealer," the USDA has limited the scope of who may qualify as a dealer by excluding from the definition of "person" public agencies, political subdivisions of state or municipal governments, and their duly authorized agents. [FN28]

Animal dealers and exhibitors are forbidden from buying, selling, offering to buy or sell, transporting, or offering to transport, any regulated animal to or from another dealer or exhibitor unless the dealer or exhibitor holds a valid license issued by the Secretary. [FN29] There are civil and criminal penalties for violating these requirements or any other standards or promulgations under the Act. [FN30]

2. Regulating Research Facilities

The AWA also regulates research facilities. [FN31] For example, the Secretary is required to establish requirements for the use of anesthesia, euthanasia, and tranquilizing drugs. [FN32] In addition, the Secretary must prescribe rules for the principal investigator of research to consider alternatives to procedures likely to cause an animal pain or distress. [FN33]

Furthermore, every research facility must establish a committee to represent the public's concerns regarding animal use in such facilities. [FN34] The committee must inspect the facility twice per year to review practices involving pain to animals, and inspect the general condition of animals. [FN35] Following the inspections, the committee must file an inspection certification report indicating any violations of standards established by the Secretary and any deviations from special permissions granted for research practices that are adverse to the animal's welfare. [FN36] The report must remain at the facility for a minimum of three years. [FN37] Furthermore, the committee must notify USDA when the facility fails to correct violations. [FN38]

3. Regulating Federal Research Facilities

Federal research facilities must follow different rules than non-federal research facilities. [FN39] Federal research facilities include "each department, agency, or instrumentality of the United States which uses live animals for research or experimentation." [FN40] The AWA requires these facilities to establish a "Federal Committee." [FN41]

The responsibilities of the Federal Committee include (1) inspecting all animal study areas and all animal facilities within the research facility and review practices involving pain to animals; [FN42] (2) inspecting the condition of animals to ensure compliance with the AWA provisions to minimize pain and distress to animals; [FN43] (3) and reporting violations of "the standards promulgated by the Secretary, including any deficient condition of animal care or treatment." [FN44]

In addition, the federal research facility must comply with all USDA standards and requirements promulgated by the Secretary under section 2143(a). [FN45] The Federal Committee must report all deficiencies to the head of the federal agency conducting the research. [FN46] The head of the agency is then responsible for all corrective actions to be taken. [FN47]

II. THE LEGISLATIVE HISTORY OF THE AWA

Since its enactment in 1966, Congress has expanded the scope of the AWA to regulate more people who use or deal with animals, to regulate more types of animals, and to regulate more activities involving animals that substantially affect interstate or foreign commerce. [FN48] In 1965, New York Congressman, Joseph Y. Resnick,made a phone call to an animal dealer, inquiring about a missing pet Dalmatian that was sent to the dealer's property. [FN49] Upset by the dealer's lack of concern for the missing Dalmatian, Resnick introduced a bill in Congress to regulate the use of dogs and cats in research. [FN50] Congress enacted the Federal Laboratory Animal Welfare Act (FLAWA) in 1966, which was later renamed the AWA, to address animal abuses in medical research. [FN51]

Congress first enacted the AWA to prevent pet animals from being stolen and placed in abusive animal research facilities. [FN52] The Act expressed three goals: (1) to prohibit the theft of pet dogs and cats; (2) to prevent stolen dogs and cats from being sold or used in research; and (3) to ensure the humane treatment of dogs and cats in research. [FN53] To achieve these goals, the AWA required the Secretary [FN54] to issue licenses to animal dealers, and the Act made it unlawful for research facilities to purchase dogs and cats from unlicensed dealers. [FN55] In addition, the AWA authorized the Secretary to promulgate regulations governing the "transportation, purchase, sale, handling, and treatment of dogs, cats, and certain other animals destined for use in research or experimentation." [FN56] The AWA also provided for inspecting facilities for violations of the Secretary's standards. [FN57]

In 1970, Congress enlarged the AWA's definition of protected "animals" to include all warm-blooded animals designated by the Secretary. [FN58] Horses and farm animals were excluded from the AWA's protection, and they still are today, except in limited situations. [FN59] In addition, Congress expanded the scope of people regulated by the Act to include animal exhibitors and wholesale pet dealers. [FN60] Furthermore, recognizing the need to "supply animals with basic necessities," Congress directed the Secretary to promulgate standards with respect to "the basic creature comforts of adequate housing, ample food and water, reasonable handling, decent sanitation, [and] sufficient ventilation." [FN61] Lastly, the 1970 amendments increased the criminal penalties that could be brought against individuals who interfered with government inspectors and broadened procedures for obtaining information during investigations. [FN62]

In 1976, Congress restated and expanded the purpose of the AWA from protecting pet animals that have been stolen to regulating animals and activities in, or substantially affecting, interstate or foreign commerce. [FN63] By expanding the AWA's scope, Congress intended to: (1) insure that animals intended for use by research facilities, for exhibition purposes, or for use as pets are provided humane care and treatment, and (2) assure the humane treatment of animals during transportation. [FN64] Moreover, Congress regulated animal treatment during transportation by regulating animal carriers and intermediate handlers. [FN65]

Finally, in 1985 and 1990, Congress enacted further amendments to expand the AWA to regulate research facilities, dealers, exhibitors, transporters, and intermediate handlers. [FN66] Congress continues to authorize the Secretary to promulgate standards to govern the "humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors." [FN67] The recent amendments "reflect the importance of the 'three R's': reduction in the number of animals used [in research], refinement of cruel techniques, and replacement of animals with plants and computer simulations." [FN68] These latest amendments primarily focused on reforming institutional treatment of laboratory animals against abusive animal research. [FN69] However, they failed to apply the three R's to farm animals used for food or fiber. [FN70]

III. PROTECTING THE ANIMALS USED IN SURVIVAL TRAINING UNDER THE AWA

A. Definition of Animal

Most of the animals used in Military survival skills training programs are chickens, rabbits, and goats. [FN71] The AWA does not protect all of these animals. [FN72] Only animals fitting within the AWA definition are protected. [FN73] The AWA defines "animal" to include: "any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet." [FN74] Animals specifically exempted from regulation include:

[H]orses not used for research purposes and other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. [FN75]

Applying Congress's definition, rabbits, goats, and chickens used in survival training are regulated so long as they are: (1) warm blooded animals; (2) used, or intended for use for research, testing, experimentation, or exhibition purposes, or as a pet; (3) and are not farm animals used or intended to be used for food or fiber. [FN76]

B. Farm Animal Exception

The primary obstacle to protecting the rabbits, chickens, and goats used in survival skills training is the AWA's "farm animal" exception. [FN77] In its current amended form, the AWA continues to exclude farm animals from protection. [FN78] The legislative history of the AWA gives no explanation for the exclusion. [FN79] Despite the fact that Congress has determined that animal suffering during experimentation is inhumane, it has failed to find that the same suffering is inhumane for farm animals. [FN80] It appears that "Congress has, in effect, discriminated against a certain group of animals apparently arbitrarily and without reason." [FN81]

Congress's definition of "animal" explicitly exempts poultry as a farm animal from regulation if it is being used for food, or fiber, or for one of the other qualifications. [FN82] Thus, poultry in survival skills training will not be protected, because they are being captured by soldiers and ultimately eaten and used as food. [FN83]

Further, the AWA protects neither goats nor rabbits used in Military survival skills training. The Animal and Plant Health Inspection Services (APHIS)--the department within the USDA responsible for administering the AWA-- has implied that they are "other farm animals." [FN84] The AWA will not regulate "other farm animals used or intended for use as food or fiber." [FN85] The AWA, however, does not define farm animals. [FN86] Congress had left this matter open to interpretation [FN87] until the USDA broadly defined farm animals. [FN88]

According to the USDA, farm animals include:

any domestic species of cattle, sheep, swine, goats, llamas, or horses, which are normally and have historically been kept and raised on farms in the United States, and used or intended for use as food or fiber, or for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food orfiber. [FN89]

Applying the USDA's definition of farm animals to the survival skills training, goats are specifically exempted from regulation because they are normally raised on domestic farms and used for food when the soldiers capture, kill, and eat them in their survival courses. [FN90]

Nonetheless, the definition of "farm animals" leaves open the possibility of protecting rabbits under the AWA. [FN91] The USDA has defined farm animals to include "animals such as rabbits, mink, and chinchilla, when they are used solely for purposes of meat, or fur, and animals such as horses and llamas when used solely as work and pack animals." [FN92] If rabbits are not used "solely" for purposes of meat, but to teach, experiment, and research soldier's survival skills, then arguably rabbits are not farm animals meant to be exempted from the AWA's regulations. [FN93]

In summary, the AWA explicitly refuses to protect poultry from being used for food or fiber, and therefore does note protect poultry used in Military survival skills training. [FN94] In addition, goats also escape the AWA's protection because the USDA has specifically exempted goats in its definition of farm animals. [FN95] Nonetheless, the USDA has left open the possibility of regulating rabbits in survival skills training, if the rabbits are not used solely for meat. [FN96] To regulate these rabbits, it must be shown that they are used for, or are intended to be used for, research and experimentation purposes. [FN97] The AWA only regulates warm-blooded animals that the Secretary determines are being used, or are intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet. [FN98]

C. Research and Experimentation

Neither Congress nor the USDA has defined research or experimentation; thus far, neither the AWA nor the USDA's regulations prevents the finding that the Military's use of rabbits in survival training is research or experimentation. [FN99] In fact, defense officials have justified the Military's cruelty to animals on the basis that, "[s]ervice members trapped behind enemy lines may have to live for days on the run, and the ability to find food can be critical to their survival." [FN100] This rationale suggests that Military survival skills training is in itself a form of research, testing, and/or experimentation. [FN101] The survival programs use animals to test soldiers' survival skills, and they research the soldiers' ability to find rabbit meat while trapped behind enemy lines. [FN102]

Further, the USDA's definition of "animal" goes further than the AWA's to protect animals used in survival skills programs. [FN103] In addition to regulating warm-blooded animals used for research, testing, experimentation, exhibition purposes, or as a pet, the USDA regulations include warm-blooded animals that are intended to be used for "teaching." [FN104] Applying the USDA's definition to the case of rabbits used in Military training programs, even if the animals are not being used for experimentation or research, they are certainly being used to "teach" survival skills to soldiers. [FN105] Rabbits should be protected under the AWA because they are not being used solely for meat, and hence they do not fall under the farm animal exception. [FN106]

On the other hand, based on the USDA's Website, the agency has interpreted Congress's definition of "animal" to include only those animals that are to be used in medical or scientific research, and not social research such as survival skills training. [FN107] Included under the USDA's description of research, testing, teaching, and experimentation are:

Investigations on animal propagation and control--such as wildlife and ecology; [l]aboratory tests--including pregnancy tests, allergy tests, and other diagnostic procedures; [q]uality-control studies--such as studies on the safety, effectiveness, durability, or other quality tests of commercial products; and [c]ollege instruction--whether for research, or education for the improvement of medical treatment techniques and methods. [FN108]

Despite the fact that the website suggests that only animals used for medical or biological research shall be regulated, neither case law, nor the USDA, nor Congress has ever explicitly defined "research," "testing," or "experimentation" in defining "animal." [FN109] Moreover, nowhere in the website does the USDA state that the above is an exclusive list of what shall be classified as research, testing, or experimentation. [FN110]

Furthermore, if the defense officials are correct and the use of animals in survival skills training is to test soldiers' ability to find food when trapped behind enemy lines, this may very well fall under the USDA's examples of research because it is an "investigation on animal propagation and control-- such as wildlife and ecology." [FN111] Survival skills programs research, test, teach, and/or experiment the impact of wildlife ecology and animal scarcity on soldiers' ability to survive behind enemy lines. [FN112]

IV. AWA'S REGULATION OF ANIMAL DEALERS

The AWA specifically regulates all animal dealers. [FN113] If the Military falls under the definition of an animal dealer, it must be licensed by the Secretary before it sells, offers to sell, transports, or offers to transport any regulated animal in commerce to a research facility. [FN114] More importantly, in the case of survival skills programs, the Military-dealer would be forbidden from buying, selling, or transporting any regulated animal unless the Military dealer held a valid license issued by the Secretary. [FN115] The Secretary is empowered to issue licenses, prescribe requirements for obtaining licenses, and demand license fees. [FN116] In order to get licensed, dealers must demonstrate that they meet the minimum standards promulgated by the Secretary at the time of the license application. [FN117] Furthermore, the AWA requires dealers to produce and retain records relating to the purchase, sale, transportation, identification, and previous ownership of regulated animals. [FN118] Lastly, any regulated animal that is delivered for transportation, transported, purchased, or sold by a dealer must be marked or identified in a humane manner as the Secretary prescribes. [FN119]

If the dealers's facilities, records, or treatment of animals do not meet the Secretary's requirements, then APHIS will advise the applicant of the deficiencies and suggest corrective measures. [FN120] The applicant then has two more chances to comply with USDA regulations through re-inspection by APHIS; if the applicant fails the third inspection, he forfeits the application fee and cannot reapply for a license for six months following the date of the third inspection. [FN121]

V. CLASSIFYING THE MILITARY AS AN ANIMAL DEALER

A. Satisfying the Statutory Definition of an Animal Dealer

Based on Congress's broad definition of "dealer," the Military, or Military personnel, will fall under the definition of dealer so long as it (1) delivers for transportation, transports, buys, sells, or negotiates the purchase or sale of (2) a regulated animal used for research, or other regulated activities (3) for compensation or profit. [FN122]

Because the Military purchases rabbits, it satisfies the first element. [FN123] To illustrate, government documents reveal that two Air Force bases use more than 1,500 rabbits each year at a cost of more than $10,000. [FN124] According to a purchase request, the Air Force routinely orders hundreds of rabbits for seven dollars each. [FN125] The second element of the definition of "dealer" is met if the Military's use of regulated animals for survival training purposes is considered research, experimentation, or teaching, and not just use as meat or for food. [FN126] The third element can be met if the Military -is paid to deliver, transport, buy, sell, or negotiate the purchase of a regulated animal. [FN127]

B. Obstacles to Classifying the Military as an Animal Dealer

1. USDA's Focus on Regulating Only Dealers Who Resell Animals

There are several obstacles to classifying the Military as a dealer. [FN128] First, despite Congress's above definition of dealer, which includes those who transport, buy, or negotiate the purchase of a regulated animal, the USDA has focused solely on sellers and traders of animals, rather than purchasers. [FN129] APHIS's Web site on the Animal Welfare Act (AWA), contains a list of regulated activities under the AWA. [FN130] APHIS provides examples of regulated activities, but the examples do not describe entities that transport, buy, or negotiate the purchase of a regulated animal. [FN131] For example, the list of regulated activities includes: (1) wholesale selling, trading, or negotiating the sale of domestic species; (2) retail or wholesale selling, trading, or negotiating the sale of wild or exotic species for purposes other than food, fiber, or fur; (3) selling regulated animals to research institutions; and (4) retail or wholesale selling, trading, or negotiating the sale of farm animals for purposes other than food, fiber, fur, or agricultural research. [FN132]

An APHIS representative also demonstrated another example of how the USDA glosses over Congress's definition of dealer. [FN133] The representative stated that the Military does not qualify as an animal dealer even though it purchased, transported and negotiated in the purchase of rabbits--a regulated animal under the AWA. [FN134] The response was:

rabbits are farmed for meat ... you can find it in many supermarkets. A dealer is someone who deals in animals--buying rabbits does not make someone a dealer ... only if they re[sell] them ... and then only if for an Animal Welfare Act covered activity. [FN135]

Neither Congress's nor the USDA's definitions state that reselling an animal is a criteria to be a dealer. [FN136] Furthermore, rabbits do not fall under the farm animal exception if they are used for other purposes than solely for meat, such as research, teaching, or experimentation. [FN137]

2. USDA's Refusal to Regulate Public Agencies as Dealers

The second obstacle in classifying the Military as a dealer is that in applying the AWA's definition of "dealer," the USDA has limited the scope of who may qualify as a dealer. [FN138] The USDA has defined "person" used in Congress's definition of "dealer" as "any individual, partnership, firm, joint stock company, corporation, association, trust, estate, or other legal entity." [FN139] In deriving this definition of "person," the USDA looked to a House of Representatives (HR) Report, which states that "person" is limited to private forms of business organizations, and nonprofit or charitable institutions. [FN140] The USDA's definition of "person" does not include public agencies or political subdivisions of state or municipal governments or their duly authorized agents. [FN141] By adopting the HR's definition of "person," the USDA has concluded that public research facilities are not dealers under the AWA. [FN142] If the Military is considered a public research facility or a public agency, it may not be a "dealer" due to the USDA's definition of "person," even though it would clearly fall under the AWA's definition of "dealer," which does not exclude public agencies from its coverage. [FN143]

Nonetheless, the USDA has erroneously interpreted Congress's mandate. [FN144] The AWA has its own definition for "persons" that does not exclude public agencies and public research facilities. [FN145] Congress settled on a clear, expansive definition of "person" that includes any individual, partnership, firm, joint stock company, corporation, association, trust, estate, or other legal entity. [FN146] Congress, aware of the HR's definition of person, could have easily excluded public entities from its definition, but it did not. [FN147] Congress's definition employs the word "includes." [FN148] Choosing the word "includes" reflects Congress's intent to expand, rather than limit the meaning of the term. [FN149] The word "include" is a term of enlargement, and not of limitation, showing that there are items that are includable, though not specifically enumerated. [FN150] As such, the USDA has impermissibly narrowed the scope of what the AWA would otherwise regulate as a dealer, because "[i]t is a basic rule of statutory construction that statements in the legislative history cannot abrogate the clear language in the statute itself." [FN151]

Moreover, in defining "person," the USDA has impermissibly adopted the HR's definition of "person" rather than the Conference Committee's definition of "person," which is identical to the broad definition enacted in the AWA. [FN152] The Conference Report stated that the Committee recommended that the House recede from its definition and agree with the amended definition. [FN153] The amendment included the definition of "person" found in the enacted AWA statute. [FN154] "It is a basic rule of statutory construction that '[s]ince the Conference Report represents the final statement of terms agreed to by both houses of Congress, next to the statute itself, it is the most persuasive evidence of Congress's intent."' [FN155] Thus, the USDA erroneously relied on the HR report. [FN156] The USDA's definition of "person" impermissibly narrowed the scope of Congress's mandate by excluding public agencies and public research facilities from regulation. [FN157]

3. Wild or Exotic Animal Exception

The final obstacle to regulating the Military as an animal dealer is that the AWA makes an exception as to who may be a dealer. [FN158] A person is not a dealer if he meets two conditions: (1) if he does not sell or negotiate the purchase or sale of any wild or exotic animal, dog, or cat; and (2) if he derives less than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats, during any calendar year. [FN159]

There is no evidence showing that the Military receives any gross income from the sale of any animal for survival training purposes, thus satisfying the second prong of the exemption. [FN160] Nonetheless, even if the Military does not sell animals, it may still qualify as a dealer (apart from the USDA's definition of persons) if it has negotiated the purchase of a wild or exotic animal, dog, or cat, thereby failing to meet the first condition. [FN161]

Congress has not defined "wild" or "exotic" animal. [FN162] However, the USDA has developed a definition. [FN163] An exotic animal is any animal that is not identified in the definition of "animal" in 9 C.F.R. § 1.1, that is either native to a foreign country or of foreign origin or character, is not a native to the United States, or has been introduced from abroad. [FN164] The USDA has explicitly included in the definition of exotic animals: lions, tigers, leopards, elephants, camels, antelope, anteaters, kangaroos, water buffalo, and species of foreign domestic cattle such as Ankole, Gayal, and Yak. [FN165] If there is evidence that the Military has negotiated in the purchase of an exotic animal, it falls out of the exception of those not deemed dealers, and thereby can be classified as a dealer. [FN166] This, however, seems unlikely because there has only been evidence of the Military using chickens, goats, and rabbits for survival training. [FN167] Because chickens and goats are domestic animals that have not been introduced from abroad, they are not exotic animals. [FN168] In addition, rabbits are not exotic animals because rabbit was identified in the definition of an animal in 9 C.F.R. § 1.1. [FN169]

Nonetheless, the Military may still be regulated as an animal dealer if it sells, or negotiates the purchase or sale of a wild animal, dog, or cat. [FN170] The USDA has defined wild animal to include "any animal, which is now or historically, has been found in the wild, or in the wild state, within the boundaries of the United States, its territories, or possessions." [FN171] Examples of wild animals include, but are not limited to skunk, opossum, raccoon, mink, armadillo, coyote, squirrel, fox, and wolf. [FN172] Based on the above definition, rabbits that are purchased in survival training programs are arguably not farm animals, but instead are wild animals because they have historically been found in the wild. [FN173]

In summary, if the Military has purchased or negotiated purchasing a rabbit, for compensation or profit, and the rabbit is a wild animal, the AWA definition requires the Military to be regulated as a dealer. [FN174] Although the USDA may not classify the Military as a "person" under the USDA's definition of a dealer, the USDA has impermissibly narrowed Congress's mandated definition of a dealer. [FN175]

VI. AWA'S REGULATION OF FEDERAL RESEARCH FACILITIES

A. Definition of Research Facility and Federal Research Facility

The USDA has treated federal research facilities unlike other research facilities, prescribing special rules for them. [FN176] The AWA and USDA define a research facility as:

Any school (except an elementary or secondary school), institution, organization, or person that uses or intends to use live animals in research, tests, or experiments, and that (1) purchases or transports live animals in commerce, or (2) receives funds under a grant, award, loan, or contract from a department, agency, or instrumentality of the United States for the purpose of carrying out research, tests, or experiments. [FN177]

In contrast, a federal research facility is "each department, agency, or instrumentality of the United States which uses live animals for research or experimentation." [FN178]

B. Regulation of Federal Research Facilities

Federal research facilities are subject to different rules than other research facilities. [FN179] Specifically, if the Military survival skills ground is a federal research facility, the Military is not required to register with the USDA or be inspected by APHIS. [FN180] Instead, a federal committee must be established which reports deficiencies or deviations from standards promulgated by the Secretary to the head of the federal agency conducting the research. [FN181] Federal committees do not report to APHIS. [FN182] The head of the federal agency conducting the research is responsible for corrective actions that are to be taken at the facility. [FN183]

Even though federal research facilities will not be inspected by APHIS, the facility must comply with all USDA standards under AWA section 2143(a) and submit an annual report to USDA regarding its use of regulated animals. [FN184] Section 2143(a) authorizes the Secretary to promulgate standards to govern the humane handling, care, treatment, and transportation of animals by research facilities. [FN185] Other minimum standards that the Secretary must promulgate are requirements for animal care, treatment, and practices in experiments to ensure that animal pain and distress is minimized. [FN186] In practices that could cause pain to the animals, the Secretary must promulgate standards requiring the principal investigator conducting the research to "consider" alternatives, consult a veterinarian, and use tranquilizers or anesthetics. [FN187] There is no requirement that the principle investigator adopt the alternative. [FN188]

Furthermore, the AWA does not empower the Secretary to promulgate rules and regulations that have to do with the "design, outline, or guidelines of actual research or experimentation by a research facility as determined by such research facility." [FN189] The Secretary cannot interrupt the conduct of actual research or experimentation. [FN190] Nonetheless, the AWA requires the federal committee to report to the USDA on procedures likely to cause pain or distress in any animal. [FN191] The federal committee must also provide "assurances" that the principal investigator of the research considered alternatives to those procedures. [FN192] Assurances require the Secretary to be satisfactorily assured that the facility is adhering to the standards. [FN193] The report must also include an explanation for any deviations from the Secretary's promulgated standards. [FN194]

VII. REGULATING THE MILITARY AS A FEDERAL RESEARCH FACILITY

Regulating the Military as a federal research facility imposes the identical problems that a litigant confronts when attempting to convince a court that "animals" used for research or experimentation include animals used for nonscientific or nonmedical research and experimentation. [FN195] Both the AWA and USDA define a federal research facility as "any department, agency, or instrumentality of the United States which uses live animals for research or experimentation." [FN196]

Based on the above definition, the Military is a federal research facility if it is a federal department that uses live animals for research and experimentation. [FN197] This, once again, turns on whether a court would accept the argument that survival skills training grounds are a place where live animals are used in order to "research" or "experiment" soldiers' survival skills to defend themselves behind enemy lines. [FN198] The argument may also turn on whether a court would accept the argument that survival skills training involves "teaching" and investigation as the USDA prescribes, as the research is based on wildlife propagation and control during combat. [FN199] As long as neither the USDA, nor Congress, nor the courts have explicitly ruled that only science or medical-based experiments qualify an entity to be a research facility, there is no legal basis on which to exclude the Military survival skills training grounds from being a federal research facility.

However, even if the Military was deemed a federal research facility, the AWA does virtually nothing to actually stop the use of animals during research or survival training programs. [FN200] This is because the AWA does nothing to regulate the actual content of the experimentation, research, or testing performed on the animals. [FN201] The AWA empowers the scientific community to regulate itself by prohibiting interference in experimentation. [FN202] The most recent amendment to the AWA specifically defers to the research facility to create its own designs and guidelines for performing research. [FN203] More importantly, the AWA prohibits any regulation of the actual research. [FN204] "The AWA plainly states that it is legitimate--and perhaps morally obligatory--to use animals in experiments." [FN205] Some argue that this result stems from the practice of treating animals as property of the facility that is conducting the experiment. [FN206]

Therefore, the AWA will not be helpful to completely stop the use of live animals in survival skills training even if the animal is deemed used for research or experimentation. [FN207] The AWA yields to the research facility to determine the suitability of its experiments by not restricting practices as long as the scientist/research facility deems the use "necessary." [FN208] However, the federal committee will still be required to report deficiencies or deviations from standards promulgated by the Secretary regarding the humane care, handling, and transportation of regulated animals. [FN209]

CONCLUSION

Under the current AWA, there will be several substantive road-blocks to thwart a litigant from protecting animals that have been purchased to be used in Military survival skills trainings. Nonetheless, a closer reading of the statute suggests that rabbits used in survival skills training may be regulated if they are used for purposes other than solely for meat, such as for teaching, research, or experimentation. There is a strong argument that the Military survival training ground is a federal research facility where rabbits are used for the purpose of teaching soldiers how to defend themselves behind enemy lines.

This argument would be buttressed if either Congress or the USDA formed a definition for "research and experimentation" to include not only biomedical research, but social skills research such as survival skills training. The USDA has assumed for far too long that research only includes experiments that expose animals to test tube drugs and chemical poisons. It has overlooked the fact that the Military may be the most venomous laboratory poison to farm animals.

[FNa1]. Executive Editor, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW, 2001-2002. I dedicate this Note to my loving and supporting family.

[FN1]. Mark Thompson, Animal Rights: A New Reason for Rabbits to Avoid Foxholes, TIME, July 26, 1999, at 14.

[FN2]. D'Arcy Kemnitz, Irrational Rations: Animals Used in Military Training, 19 ANIMALS' AGENDA, July/Aug. 1999, at 20.

[FN3]. Id.

[FN4]. See id.

[FN5]. Id.

[FN6]. Id.

[FN7]. Id.

[FN8]. See Kemnitz, supra note 2, at 20.

[FN9]. See Nicole Fox, Note, The Inadequate Protection of Animals Against Cruel Animal Husbandry Practices Under United States Law, 17 WHITTIER L. REV. 145, 146-47 (1995). Farm animals are regulated under three other laws. However, none of the laws protect farm animals against Military survival skills training. The Twenty-Eight Hour Law limits the time period animals may be held in transport to twenty-eight hours. Id. at 146. The statutes only cover the transportation conditions of farm animals; it does not protect their living conditions. Id. The Humane Methods of Slaughter Act prevents the inhumane slaughter of live-stock, but does nothing to stop the inhumane slaughter of poultry or any painful handling of ritually slaughtered animals. Id. at 146- 47. Lastly, "the Animal Welfare Act purports to regulate the use of animals for experimentation, yet specifically excludes farm animals from its coverage. As such farm animals used in scientific experiments are not protected." Id. at 147.

[FN10]. See Animal Welfare Act (AWA), 7 U.S.C. § 2143(a)(3) (1994) (establishing provisions regarding laboratory testing of animals).

[FN11]. See id. § 2132(g). The AWA does not regulate farm animals used or intended for use as foods. See id.

[FN12]. See John Mendelson, III, Should Animals Have Standing? A Review of Standing Under the Animal Welfare Act, 24 B.C. ENVTL. AFF. L. REV. 795, 819 (1997) (discussing the complexity in achieving standing under the AWA to bring an action against the USDA).

[FN13]. Int'l Primate Prot. League v. Inst. for Behavioral Research, 799 F.2d 934, 940 (4th Cir. 1986); In Def. of Animals v. Cleveland Metroparks Zoo, 785 F. Supp. 100, 103 (N.D. Ohio 1991); People for the Ethical Treatment of Animals v. Institutional Animal Care & Use Comm. of the Univ. of Or., 794 P.2d 1224, 1227-28 (Or. App. 1990); Interview with Zygmunt Plater, Professor of Law, Boston College Law School, in Newton, Mass. (Nov. 14, 2000).

[FN14]. See Nancy Goldberg Wilks, The Pet Theft Act: Congressional Intent Plowed Under by the United States Department of Agriculture, 1 ANIMAL L. 103, 119 (1995).

[FN15]. See Animal and Plant Health Inspection Service (APHIS), Regulated Activities, at http://www.aphis.usda.gov/ac/dealer/activity.html (last visited Jan. 9, 2001) [hereinafter Regulated Activities]. The APHIS has focused on regulating dealers who resell animals rather than purchase animals. Id. The AWA defines dealers as "[a]ny person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of: Any dog or other animal whether alive or dead ... for research, teaching, testing, experimentation, exhibition, or for use as a pet." 7 U.S.C. § 2132(f).

[FN16]. See generally 7 U.S.C. § 2132(g); 9 C.F.R. § 1.1 (2000) (describing the farm animals exempted from regulation, and stating that rabbits may be regulated if not used solely for meat).

[FN17]. 9 C.F.R. § 1.1. Rabbits, mink, and chinchilla are the only farm animals that can be regulated if not used solely for meat. Id. All other farm animals are not regulated if used or intended to be used for food or fiber. 7 U.S.C. § 2132(g).

[FN18]. See 7 U.S.C. § 2143(c).

[FN19]. Id. § 2132. The AWA does not define research or experimentation. See id.

[FN20]. Id. § 2143(a)(1).

[FN21]. Id. § 2131.

[FN22]. Id.

[FN23]. Id.

[FN24]. 7 U.S.C. § 2132(g).

[FN25]. Id.

[FN26]. Id. § 2143(a)(1)-(4).

[FN27]. Id. § 2132(f).

[FN28]. Wilks, supra note 14, at 119.

[FN29]. 7 U.S.C. § 2134.

[FN30]. Id. § 2149(b), (d).

[FN31]. Id. § 2143(a).

[FN32]. Id. § 2143(a)(3)(C).

[FN33]. Id. § 2143(a)(3)(B).

[FN34]. Id. § 2143(b)(1).

[FN35]. 7 U.S.C. § 2143(b)(3).

[FN36]. Id. § 2143(b)(4)(A).

[FN37]. Id. § 2143(b)(4)(B).

[FN38]. Id. § 2143(b)(4)(A)(ii).

[FN39]. Id. § 2144.

[FN40]. Id. § 2132(0).

[FN41]. 7 U.S.C. § 2143(c).

[FN42]. Id. § 2143(b)(3)(A)-(C).

[FN43]. Id. § 2143(b)(3)(B)-(C).

[FN44]. Id. § 2143(b)(4)(A)(ii).

[FN45]. Id. § 2144.

[FN46]. Id. § 2143(c).

[FN47]. 7 U.S.C. § 2143(c).

[FN48]. Mendelson, supra note 12, at 798.

[FN49]. Id. at 796.

[FN50]. Id.

[FN51]. Id. at 796-97.

[FN52]. Id. at 795.

[FN53]. Laboratory Animal Welfare Act, Pub. L. No. 89-544, 80 Stat. 350, 400 (1966) (codified and amended at 7 U.S.C. §§ 2131-2159 (1994)).

[FN54]. Carole Lynn Nowicki, Note, The Animal Welfare Act: All Bark and No Bite, 23 SETON HALL LEGIS. J. 443, 452 n.54 (1999). Congress debated over delegating this responsibility to either the Secretary of Agriculture or to the Secretary of Heath, Education, and Welfare. After further hearings, Congress decided to assign the responsibility to the Secretary of Agriculture. Id.

[FN55]. Mendelson, supra note 12, at 798.

[FN56]. Id.

[FN57]. See Nowicki, supra note 54, at 452-53.

[FN58]. See id. at 454 n.63.

[FN59]. Id.

[FN60]. Mendelson, supra note 12, at 798.

[FN61]. Id.

[FN62]. Id.

[FN63]. 7 U.S.C. § 2131 (1994).

[FN64]. Id.; see also Nowicki, supra note 54, at 455 n.69.

[FN65]. Nowicki, supra note 54, at 455 n.69.

[FN66]. See 7 U.S.C. § 2143.

[FN67]. Id. § 2143(a)(1).

[FN68]. Mendelson, supra note 12, at 800.

[FN69]. Id. at 799-800.

[FN70]. See generally 7 U.S.C. § 2132(g) (describing the farm animal exception).

[FN71]. Kemnitz, supra note 2, at 20.

[FN72]. See 7 U.S.C. § 2132(g).

[FN73]. See id.

[FN74]. Id.

[FN75]. Id.

[FN76]. See id.

[FN77]. Id. Farm animals are exempt from coverage when used for "agricultural purposes" or for "use as food and fiber." 7 U.S.C. § 2132(g).

[FN78]. Fox, supra note 9, at 168.

[FN79]. Id.

[FN80]. Id. at 175.

[FN81]. Id.

[FN82]. 7 U.S.C. § 2132(g).

[FN83]. Kemnitz, supra note 2, at 20.

[FN84]. E-mail from Jerry D. Depoyster, Agency Representative, APHIS, to Salma Mavany (Dec. 27, 2000, 15:15 EST) (on file with author). In the e-mail message I asked the APHIS why the Military was not regulated for using rabbits in the Military survival skills training. I also asked whether rabbits were farm animals. Mr. Depoyster replied, "[b]ased on the information you supplied, it appears that the purchased rabbits are being used as food and perhaps to train trapping and hunting skills. Hunting or trapping for food, or to use an animal for food, is not a regulated activity under the Animal Welfare Act. There is no federal law against hunting, trapping, or using animals for food (unless the animal is an endangered species or otherwise protected). There is a humane slaughter act, but it only applies to commercial packing houses." Mr. Depoyster never answered whether rabbits were farm animals. He assumed that as long as an animal is used for food, it is exempted. But see 9 C.F.R. § 1.1 (1999) (definition of "farm animals").

[FN85]. 7 U.S.C. § 2132(g).

[FN86]. See id. § 2132.

[FN87]. Id.

[FN88]. 9 C.F.R. § 1.1 (2000).

[FN89]. Id.

[FN90]. See id.; see also Kemnitz, supra note 2, at 20.

[FN91]. See 9 C.F.R. § 1.1.

[FN92]. Id.

[FN93]. See id.

[FN94]. See 7 U.S.C. § 2132(g) (1994).

[FN95]. 9 C.F.R. § 1.1.

[FN96]. See id.

[FN97]. 7 U.S.C. § 2132(g).

[FN98]. Id.

[FN99]. 9 C.F.R. § 1.1; see generally 7 U.S.C. § 2132(g).

[FN100]. Thompson, supra note 1, at 14.

[FN101]. See 7 U.S.C. § 2132(g) (1994).

[FN102]. See Thompson, supra note 1, at 14.

[FN103]. See 9 C.F.R. § 1.1.

[FN104]. Id.

[FN105]. See generally Thompson, supra note 1, at 14.

[FN106]. See 9 C.F.R. § 1.1.

[FN107]. See APHIS, Licensing and Registration Under the Animal Welfare Act, at http://www.aphis.usda.gov/ac/awlicreg.html (last visited Jan. 5, 2001) [hereinafter APHIS Website].

[FN108]. Id.

[FN109]. E-mail from Jerry D. Depoyster, Agency Representative, APHIS (Dec. 28, 2000, 08:45 EST) (on file with author). In the e-mail I asked, "what is the definition of research or experimentation?" Mr. Depoyster replied, "we do not have a published definition for research or experimentation, but are working on one. Basically, research as covered by the [A]nimal [W]elfare [A]ct is for the benefit of humans i.e. biomedical research. Research on animals to improve the breed, or meat production, or milk production, or overall health is not a covered activity." Id.

[FN110]. See APHIS Website, supra note 107.

[FN111]. See Thompson, supra note 1, at 14.

[FN112]. See generally id.

[FN113]. See 7 U.S.C. § 2134 (1994).

[FN114]. See id.

[FN115]. See id.

[FN116]. Id. § 2133.

[FN117]. Id.

[FN118]. Id.

[FN119]. 7 U.S.C. § 2141.

[FN120]. 9 C.F.R. § 2.3(b) (2000).

[FN121]. Id.

[FN122]. See 7 U.S.C. § 2132(f).

[FN123]. See Thompson, supra note 1, at 14.

[FN124]. Kemnitz, supra note 2, at 20.

[FN125]. Thompson, supra note 1, at 14.

[FN126]. See supra Part III(C).

[FN127]. 7 U.S.C. § 2132(f).

[FN128]. See generally id.

[FN129]. See Regulated Activities, supra note 15.

[FN130]. Id.

[FN131]. Id.

[FN132]. Id.

[FN133]. See E-mail from Jerry D. Depoyster, Agency Representative, APHIS (Dec. 28, 2000, 08:45 EST) (on file with author).

[FN134]. Id.

[FN135]. Id.

[FN136]. See 7 U.S.C. § 2132(f) (1994); 9 C.F.R. § 1.1 (2000).

[FN137]. See 9 C.F.R. § 1.1 (defining "farm animal").

[FN138]. Wilks, supra note 14, at 119-20.

[FN139]. 9 C.F.R. § 1.1.

[FN140]. Wilks, supra note 14, at 119.

[FN141]. Id.

[FN142]. Id.

[FN143]. See id. at 119-20.

[FN144]. Id. at 120.

[FN145]. 7 U.S.C. § 2132(a) (1994).

[FN146]. Id.

[FN147]. Wilks, supra note 14, at 120.

[FN148]. Id. at 120 n.80.

[FN149]. Id.

[FN150]. Id.

[FN151]. Id. at 120.

[FN152]. Id. at 120-21.

[FN153]. Wilks, supra note 14, at 121.

[FN154]. Id.

[FN155]. Id.

[FN156]. See id.

[FN157]. See id.

[FN158]. 7 U.S.C. § 2132(f) (1994).

[FN159]. Id.

[FN160]. Telephone Interview with Cem Akin, Research Associate, PETA (Dec. 12, 2000). PETA had no documents to show evidence of the Military selling animals for survival training.

[FN161]. 7 U.S.C. § 2132(f).

[FN162]. See generally id. § 2132.

[FN163]. 9 C.F.R. § 1.1 (2000).

[FN164]. Id.

[FN165]. Id.

[FN166]. See id.

[FN167]. Kemnitz, supra note 2, at 20.

[FN168]. See 9 C.F.R. § 1.1.

[FN169]. See id.

[FN170]. See id.

[FN171]. Id.

[FN172]. Id.

[FN173]. See id.

[FN174]. 9 C.F.R. § 1.1.

[FN175]. 7 U.S.C. § 2132(f) (1994); see 9 C.F.R. § 1.1.

[FN176]. 7 U.S.C. § 2144.

[FN177]. Id. § 2132(o); see also 9 C.F.R. § 1.1.

[FN178]. 7 U.S.C. § 2132(o); 9 C.F.R. § 1.1.

[FN179]. 7 U.S.C. § 2144

[FN180]. Id. § 2143(c).

[FN181]. Id.

[FN182]. Id.

[FN183]. Id.

[FN184]. Id.

[FN185]. 7 U.S.C. §§ 2143(a), 2144.

[FN186]. Id.

[FN187]. Id.

[FN188]. Id.

[FN189]. Id.

[FN190]. Id. § 2143(a)(6)(A)(iii).

[FN191]. 7 U.S.C. § 2143(b)(3).

[FN192]. Id. § 2143(a)(3)(B).

[FN193]. See id. § 2143(b)(4).

[FN194]. Id. § 2143(b)(4)(A).

[FN195]. See supra Part III(C).

[FN196]. 7 U.S.C. § 2132(o); 9 C.F.R. § 1.1 (2000).

[FN197]. See 7 U.S.C. § 2132(o); 9 C.F.R. § 1.1 (2000).

[FN198]. See supra Part III(C).

[FN199]. See id.

[FN200]. 7 U.S.C. § 2143(a)(6)(A)(ii)-(iii).

[FN201]. See Nowicki, supra note 54, at 463.

[FN202]. Id. at 463 n.90.

[FN203]. Id.

[FN204]. Id. at 463.

[FN205]. GARY L. FRANCIONE, ANIMALS, PROPERTY, AND THE LAW 200 (1995).

[FN206]. Id. at 201.

[FN207]. See Nowicki, supra note 54, at 464.

[FN208]. Id.

[FN209]. 7 U.S.C. § 2143(c) (1994).

 

 

 

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