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THE ANIMAL WELFARE ACT

Henry Cohen


2 Journal of Animal Law 12 (2006)
Publish Date:
2006
Place of Publication: Michigan State University College of Law
Printable Version

THE ANIMAL WELFARE ACT

THE ANIMAL WELFARE ACT

Henry Cohen*

 

I. Overview

The Animal Welfare Act (AWA)[1] is a federal statute that directs the Secretary of the United States Department of Agriculture (USDA) to “promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors.”[2]  The AWA also requires the Secretary to “promulgate standards to govern the transportation in commerce, and the handling, care, and treatment in connection therewith, by intermediate handlers, air carriers, or other carriers, of animals consigned by any . . . person . . . for transportation in commerce.”[3]  The Secretary has delegated these duties to the Animal and Plant Health Inspection Service (APHIS) in the USDA.

        By requiring standards to govern the treatment of animals by dealers, exhibitors, and research facilities, the AWA protects animals that are sold or transported in commerce,[4] exhibited in “carnivals, circuses, and zoos” (but not “retail pet stores, state and country [sic] fairs, livestock shows, rodeos, and purebred dog and cat shows”),[5] or experimented upon in laboratories, except that the AWA covers only about five or ten percent of laboratory animals.  The reason that it covers only about five or ten percent of laboratory animals is that it defines “animal” to exclude rats and mice bred for research,[6] and rats and mice reportedly constitute 90[7] or 95[8] percent of animals used in research.[9]  The AWA also does not cover farm animals,[10] of which more than 9 billion are slaughtered annually in the United States.[11]

        The AWA requires every research facility to establish an Institutional Animal Committee of at least three members, at least one of whom shall not be affiliated in any way with the facility and who is intended to represent “general community interests in the proper care and treatment of animals.”[12]  Federal research facilities must also establish Institutional Animal Committees.[13]  The Committee’s responsibilities include to review practices involving pain to animals and to file a report that shall be available for inspection by APHIS and any funding federal agency.[14]  The AWA also provides for the licensing of dealers and exhibitors, excluding “any retail pet store or other person who derives less than a substantial portion of his income . . . from the breeding and raising of dogs or cats on his own premises and sells any such dog or cat to a dealer or research facility.”[15]  It also prohibits research facilities from purchasing dogs or cats from unlicensed dealers or exhibitors.[16]

        The AWA effectively prohibits most commercial animal fighting, with a limited exception for bird fighting,[17] and prohibits dealers and exhibitors from selling or otherwise disposing of any dog or cat within five business days after they acquire it, except that this requirement does not apply to operators of auction sales.[18]  It also requires public and private pounds and shelters, and research facilities licensed by the Department of Agriculture, to “hold and care for” any dog or cat they acquire for not less than five days.[19]  Sanctions for violations of the AWA include license suspensions and revocations, civil penalties, and misdemeanor criminal penalties.[20]

        This article will examine the original statute that became the Animal Welfare Act, and all its amendments, but does not note every provision in it, or every exception to every provision that it does note.  It focuses on the statute itself, and not on APHIS regulations or case law.  It will also examine the main provisions of  recent bills that have been introduced in Congress but not, or not yet, enacted.

 

II. History

 

A. The 1966 Beginning

 

The first version of the Animal Welfare Act was enacted, without a name, in 1966.[21]  It had two main goals: to protect owners of dogs and cats from the theft of those pets for research purposes, and to regulate the treatment of six species of animals used in research: dogs, cats, monkeys, guinea pigs, hamsters, and rabbits. 

        The statute addressed its first goal by directing the Secretary of Agriculture to issue licenses to dealers,[22] with “dealer” defined as any person who, for compensation, transports, buys, or sells dogs or cats in commerce for research purposes;[23] by prohibiting dealers from selling or buying dogs or cats to or from unlicensed dealers;[24] and by prohibiting dealers from selling or otherwise disposing of any dog or cat within five business days, or such other period as the Secretary specified, after acquiring it.[25]  The statute also required research facilities that use dogs or cats to register with the Secretary,[26] prohibited research facilities from buying any dog or cat from anyone but a licensed dealer,[27] and prohibited unlicensed dealers from selling any dog or cat to a research facility.[28]

        To address its second goal, the 1966 statute directed the Secretary of Agriculture to “promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers and research facilities,”[29] and required federal entities with laboratory animal facilities to comply with such standards.[30]  The statute defined “animals” so that the standards applied to all the animals named above: dogs, cats, monkeys, guinea pigs, hamsters, and rabbits.[31]  The congressional committee reports that accompanied the statute did not explain why these particular species and no others were granted protection.

        The Senate committee report noted, however, that the committee had heard “shocking testimony . . . concerning the existence of pet stealing operations which supply some animals eventually used by many research institutions.”  The committee found that animals in the hands of both dealers and medical research laboratories “are faced with inhumane conditions.  Quarters are cramped, uncomfortable, and unsanitary, with inadequate provisions for food and water.”[32]

 

B. Animal Welfare Act of 1970:

Expansion to Other Warm-Blooded Animals; Exhibitors

 

The first amendment to the 1966 statute was the Animal Welfare Act of 1970.[33]  The 1970 statute expanded the definition of “animal” to include not only the six species previously covered, but any “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.”  (As discussed below, APHIS immediately construed “warm-blooded animal” to exclude birds, rats, and mice.”[34])  The 1970 statute’s definition of “animal,” although it generally included warm-blooded animals, excluded “horses not used for research purposes and other farm animals . . . used or intended for use as food or fiber. . . .”[35]  The new definition, by adding the phrase “exhibition purposes,” added not only warm-blooded animals (other than horses and farm animals) to those that the statute covered, but included such animals if they were used not only in research, but in exhibitions, which the statute defined to include “carnivals, circuses, and zoos,” but to exclude “retail pet stores, . . . State and country [sic] fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary.”[36]

        The 1970 amendment also expanded the scope of the standards that the Secretary of Agriculture was required to promulgate, by mandating that they include “the appropriate use of anesthetic, analgesic or tranquilizing drugs, when such use would be proper. . . .”[37]  The statute provided, however, that it should not be construed to authorize regulations with regard to “actual research or experimentation by a research facility.”[38]  “[T]he research scientist,” the committee report made clear, “still holds the key to the laboratory door.”[39]  This meant that researchers were not required to balance the relative importance of an experiment against the amount of pain the experiment might cause, or otherwise to justify the infliction of suffering on animals.

 

C. Animal Welfare Act Amendments of 1976:

Expansion to Animal Fighting Ventures

 

The 1976 amendments,[40] which formally named the act the “Animal Welfare Act,”[41] expanded the act in various respects, including to cover dogs used for hunting, security, or breeding purposes,[42] and to require intermediate handlers and carriers, in transporting animals covered by the act, to adhere to standards promulgated by the Secretary.[43]  The 1976 amendments also made it a misdemeanor “to knowingly sponsor or exhibit an animal in an animal fighting venture to which any animal was moved in interstate or foreign commerce”[44]; “to knowingly sell, buy, transport, or deliver” an animal in interstate or foreign commerce for purposes of having the animal participate in an animal fighting venture;[45] or “to knowingly use the mail service . . . or any interstate instrumentality for purposes of promoting . . . an animal fighting venture . . .”[46]  An exception to the animal fighting venture prohibitions was included: the prohibitions applied “to fighting ventures involving live birds only if the fight is to take place in a State where it would be in violation of the laws thereof.”[47]  None of the accompanying committee reports states a reason for the exception.

 

D. Animal Welfare Act Amendments of 1985: Expansion to Actual Research

The 1985 amendments to the Animal Welfare Act made the act applicable, for the first time, to actual research.[48]  The Secretary was directed to promulgate standards “for animal care, treatment, and practices in experimental procedures to ensure that animal pain and distress are minimized, including adequate veterinary care with the appropriate use of anesthetic, analgesic, tranquilizing drugs, or euthanasia.”[49]  In addition, the Secretary was to require “that the principal investigator considers alternatives to any procedure likely to produce pain to or distress in an experimental animal.”[50]  If a researcher engages in a practice that would cause pain to animals, then the Secretary must require “the use of tranquilizers, analgesics, and anesthetics,” except “when scientifically necessary.”[51]  In addition, no animal may be “used in more than one major operative experiment from which it is allowed to recover except in cases of--(i) scientific necessity; or (ii) other special circumstances as determined by the Secretary.”[52] 

        The 1985 amendments, however, permitted exceptions to all AWA standards “when specified by research protocol.”[53]  In addition, the 1985 amendments specified that the Secretary was not to regulate “the design, outlines, or guidelines of actual research or experimentation,” or to regulate the performance of actual research or experimentation beyond the above requirements regarding pain and distress.[54]  Researchers, in other words, would still not be required to balance the relative importance of an experiment against the amount of pain the experiment might cause, or otherwise to justify the infliction of suffering on animals.  To consider alternatives would be sufficient.  The Secretary, however, was directed “to show upon inspection, and to report at least annually, that . . . professionally acceptable standards governing the care, treatment, and use of animals are being followed by the research facility during actual research or experimentation.”[55]

 

E. Animal Welfare Act Amendments of 1990:

Protection of Pet Dogs and Cats[56]

 

The 1990 amendments required public and private pounds and shelters, and research facilities licensed by the Department of Agriculture, to “hold and care for” any dog or cat they acquire “for a period of not less than five days to enable such dog or cat to be recovered by its original owner or adopted by other individuals before such entity sells such dog or cat to a dealer.”[57]  Does this provision prohibit a pound, shelter, or research facility from euthanizing a dog or cat before five days?  Perhaps not on its face, but that would seem to be its intent, as to read it otherwise would defeat its purpose.[58]

 

F. AWA Amendments of 2002: Expansion of Animal Fighting Venture Prohibition;

Exclusion of Birds, Rats, and Mice Bred for Use in Research

 

As noted above, the 1976 provisions that prohibited any person to knowingly sponsor or exhibit an animal in an animal fighting venture, or to knowingly sell, buy, transport, or deliver animals to be used in animal fighting ventures, included an exception for birds if the fighting venture was legal in the state in which it was to occur.[59]  The 2002 amendment expanded the prohibition by limiting the exception, which now provides:

With respect to fighting ventures involving live birds in a State where it would not be a violation of the law, it shall be unlawful under this subsection for a person to sponsor or exhibit a bird in a fighting venture only if the person knew that any bird in the fighting venture was knowingly bought, sold, delivered, transported, or received in interstate commerce for the purpose of participation in the fighting venture.[60]

       Thus, for it to be legal to sponsor or exhibit a bird in an animal fighting venture, it is no longer sufficient that the venture be legal under state law; now, the person sponsoring or exhibiting the bird must also have been unaware that a transaction involving a bird had occurred in interstate commerce.  The 2002 amendments expanded the animal fighting ventures prohibition in another way too.  Since 1976, it had been a crime “to knowingly sell, buy, transport, or deliver” an animal to participate in an animal fighting venture.[61]  The 2002 amendments added “received” to the other four verbs, and did away with the exception, insofar as it applied to the prohibition involving these five verbs.[62]

      The 1976 amendments had also prohibited any person “to knowingly use the mail service . . . or any interstate instrumentality for purposes of promoting . . . an animal fighting venture . . . ,”[63] and this prohibition had also been subject to an exception for birds if the fighting venture was legal in the state in which it was to occur.  This provision and the exception were not amended in 2002 and remain in effect.

      The 2002 amendments’ exclusion of birds, rats, and mice bred for use in research[64] is of major importance, because rats and mice constitute 90 or 95 percent of animals used in research.[65]  Its importance, however, is in denying future protection to those animals, not in depriving them of protection that they had previously had.  This is because, under APHIS regulations, birds, rats, and mice had never been protected, despite their inclusion in the AWA beginning with the 1970 amendments.[66]  (An exception is that birds, rats, and mice not bred for research are protected today and received some protection in the past.[67])  The statute’s definition of “animal,” from 1970 until today, begins:

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; but such term excludes . . . .[68]

        Prior to the 2002 amendment, the animals that followed the word “excludes” included “horses not used for research purposes and other farm animals,” with examples of farm animals named.  The 2002 statute added to the excluded animals “birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research.”[69]

        Birds, rats, and mice are warm-blooded animals, and there was no plausible way that the statute, from 1970 to 2002, could have been read to exclude them if they were used or intended for use for research, testing, experimentation, or exhibition purposes.  The statute on its face limited the Secretary’s discretion to determining whether warm-blooded animals were used or intended for use for such purposes, and the legislative history confirmed that reading.[70]  If the Secretary found that they were used for such purposes, then the statute mandated their coverage.[71]

        Not surprisingly, an animal advocacy group sued to overturn the regulation’s exclusion of birds, rats, and mice, and, not surprisingly, it won, with a federal district court in Washington, D.C., finding that the exclusion was “arbitrary and capricious and violates the Act.”[72]  The decision was overturned by the D.C. Circuit, however, on standing grounds.[73]  Four years later, in a case unrelated to the birds, rats, and mice question, the en banc D.C. Circuit expanded the grounds for standing to include injuries to one’s “aesthetic interest in observing animals living under humane conditions.”[74]

        Subsequently, another suit was brought to challenge the exclusion of birds, rats, and mice, and a federal district court, citing the en banc D.C. Circuit case, denied the Department of Agriculture’s motion to dismiss for lack of standing.[75]  As a result, the Department of Agriculture settled the case by agreeing to revise its regulations to include birds, rats, and mice.[76]  Then Congress intervened, and, in the Department of Agriculture appropriations for fiscal year 2001, prohibited FY2001 funds from being used to “modify the definition of ‘animal’ in existing regulations pursuant to the Animal Welfare Act.”[77]  The FY2002 appropriations contained effectively the same prohibition,[78] and then Congress amended the Animal Welfare Act to exclude birds, rats, and mice bred for research.[79]

        Why had the Secretary of Agriculture excluded birds, rats, and mice from coverage?  In the 1992 federal district court case that found the exclusion arbitrary and capricious, the Department of Agriculture said that it had “considered the number of animals involved, the resources available, and the approximate cost of regulation.”[80]  The court’s response to this claim was that “birds, rats, and mice could be included in the definition without requiring the expenditure of significant agency resources.”[81]  As the court noted, the cost of enforcing the law was not relevant:

The court recognizes that enforcement of these regulations would require some expenditure of agency resources.  Yet even without any active agency enforcement, the inclusion of rats, mice and birds under the Act would send an important message to those responsible for their care--that the care of these animals is something for which they are legally accountable and is an important societal obligation.  This message is much more consistent with the purposes of the Act than the current message the exclusion of these animals conveys: that the researchers may subject birds, rats, and mice to cruel and inhumane conditions, that such conduct is sanctioned by the Government and has no legal consequences.[82]

        In any event, the Secretary’s purported concern with the cost of policing the treatment of birds, rats, and mice must be viewed in light of the fact that “Agriculture officials lobbied in support of cuts in the program, but Congress has refused to go along.  In this fiscal year [1985], for example, the USDA requested $3.65 million for animal welfare, but Congress retained last year’s $4.86 million.”[83]  As one commentator put it, “the USDA has never wanted to enforce the animal welfare program.”[84]

        The 2002 amendments also directed the National Research Council, by May 13, 2003, to submit to the House and Senate Agriculture Committees “a report on the implications of including rats, mice, and birds within the definition of animal under the regulations promulgated under the Animal Welfare Act (7 U.S.C. 2131 et seq.).”[85]  No report has been prepared.[86]

 

III.  Proposed Bills to Amend the Animal Welfare Act

 

There are three bills to amend the AWA pending in the 109th Congress, which is in session  during 2005 and 2006.  We discuss those three, as well as a bill that was introduced in the 108th Congress (2003-2004) and the 107th Congress (2001-2002), but was not enacted and has not been reintroduced in the 109th Congress.

 

A. Animal Fighting

 

        The Animal Fighting Prohibition Enforcement Act of 2005 was introduced as S. 382 and H.R. 817, 109th Congress.  S. 382  passed the Senate on April 28, 2005,[87] but H.R. 817 has not been taken up in a House committee or on the floor of the House.  This bill would enact a new 18 U.S.C. § 49, which would not be part of the Animal Welfare Act, but presumably would supersede 7 U.S.C. § 2156, which is the section of the AWA that outlaws most animal fighting ventures.  The bill, however, on its face would repeal only subsection (e) of section 2156, which makes violations of section 2156 a misdemeanor; the bill, by contrast, would authorize prison sentences of up to two years, thus making violations of its animal fighting prohibitions a felony.[88]  The sponsor of the Senate bill said that he wished to increase the penalties because he had been “informed by U.S. attorneys that they are hesitant to pursue animal fighting cases with merely a misdemeanor penalty.”[89] 

        The bill would not include a counterpart to the section of the AWA that authorizes the Secretary of Agriculture to investigate suspected violations.[90]  The reason for this omission is presumably that the animal fighting prohibitions, because they would be moved from the AWA to title 18 of the U.S. Code, would be enforced solely by the Department of Justice.

        Another major change that the new bill would make would be to make it unlawful “to knowingly sell, buy, transport, or deliver in interstate or foreign commerce a knife, a gaff, or any other sharp instrument attached, or designed or intended to be attached, to the leg of a bird for use in an animal fighting venture.”  The Senate bill’s sponsor explained that the knives that are used in cockfights are commonly known as “slashers,” and that “slashers and icepick-like gaffs are attached to the legs of birds to make the cockfights more violent and to induce bleeding of the animals.”[91]

 

B. Sources of Dogs and Cats for Research

 

The Pet Safety and Protection Act of 2005 (S. 451, 109th Congress) would prohibit research facilities and federal research facilities from using “a dog or cat for research or educational purposes if the dog or cat was obtained from other than a [permissible source].”  It would also prohibit any person who is not a permissible source from selling, donating, or offering a dog or cat to any research facility or Federal research facility.  A permissible sources would be (1) a licensed dealer that has bred and raised the dog or cat, (2) a publicly owned and operated pound or shelter that is registered with the Secretary, is in compliance with 7 U.S.C. § 2158 (requiring it to hold dogs and cats for five days), and obtained the dog or cat from its legal owner, but not from another pound or shelter, (3) a person or entity that is donating the dog or cat and that bred and raised it, or owned it for not less than one year immediately preceding the donation, (4) a licensed research facility, or (5) a licensed federal research facility.  The penalty for violating the bill would be $1,000 in addition to any other applicable penalty.

 

C. Coverage of Retail Pet Stores that Breed Animals; Sellers of Dogs and Cats

 

The Pet Animal Welfare Statute of 2005 (PAWS) (S. 1139 and H.R. 2669, 109th Congress) would, among other things, amend the AWA’s definition of “dealer.”  The AWA defines “dealer,” in part, as a person “who, in commerce, for compensation or profit,” sells any animal “for research, teaching, exhibition, or use as a pet.”[92]  The AWA defines “commerce” to include a transaction “between a place in a State and any place outside of such State.”[93]  Therefore, if you and I live in different states, and I sell you my dog or cat for $1, then I am a “dealer” under the AWA.[94]  A retail pet store, however, under one of the two exclusions in the definition of “dealer,” is not a “dealer” under the AWA, unless it sells animals to “a research facility, an exhibitor, or a dealer.”[95]

        PAWS would not change the fact that a retail pet store that does not sell animals to “a research facility, an exhibitor, or a dealer” is not a “dealer” under the AWA, but it would add a restrictive definition of “retail pet store” to the AWA.  A “retail pet store” would be “a public retail establishment that sells animals commonly kept as pets in households in the United States, including--(A) dogs; (B) cats; (C) guinea pigs; (D) rabbits; and (E) hamsters.”  This list of animals is not exhaustive, but would prevent APHIS or a court from finding that any of the animals on the list are not commonly kept as pets in U.S. households.  But PAWS’ definition of “retail pet store” does contain exclusions, one of which is “a person breeding animals to sell to the public as pets.”

        Thus, under PAWS, a person breeding animals to sell to the public as pets would no longer be excluded from the definition of “dealer” by virtue of being a retail pet store, because such a person would not be defined as “a retail pet store.”  He might look like a retail pet store, smell like a retail pet store, and bark, meow, and chirp like a retail pet store, but he would not be a “retail pet store” under PAWS.  Therefore, he would not be excluded from the definition of “dealer,” but would be a “dealer,” subject to regulation under the AWA, if he sold any animal in commerce, for compensation, and for use as a pet.  And that seems to be a purpose of PAWS--to make the AWA applicable to retail pet stores that breed animals.  The sponsor of the Senate bill said: “Because the AWA only covers breeders and others who sell at wholesale, many puppy mill owners have successfully avoided AWA requirements by selling directly to the public.”[96]

        The second exclusion in the AWA’s current definition of “dealer” is “any person who does not sell . . . any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year.”[97]  PAWS would replace this exclusion with a provision that  would exclude from the definition of “dealer” any person who, during any calendar year, “sells not more than 25 dogs or cats at wholesale or to the public; or [emphasis added] . . . does not whelp more than 6 litters of dogs or cats . . . ; and . . . derives not more than $500 gross income from the sale of other animals.”[98]  With regard to the “or” that I italicized, note that, if a dealer is a person who does not do X or Y, then, to be a dealer, he must (at the least) do X and Y.  This means that, if we consider the universe of people who derive not more than $500 gross income from the sale of animals other than dogs or cats, then a person who sells more than 25 dogs or cats would not be a dealer unless he also whelps more than 6 litters of dogs or cats.  Likewise, a person who whelps more than 6 litters of dogs or cats would not be a dealer unless he also sells more than 25 dogs or cats.  Perhaps the “or” that I italicized is a drafting error and should be “and,” so that a person would not be a dealer if he sells not more than 25 dogs or cats, and would also not be a dealer if he does not whelp more than six litters of dogs or cats.  In other words, if the “or” is changed to “and,” then a person could be a dealer if he sold more than 25 dogs or cats, or if he whelped more than 6 litters of dogs or cats.[99]

        Still in the universe of people who derive not more than $500 gross income from the sale of animals other than dogs or cats, remember that the AWA currently excludes from the definition of “dealer” any person who does not sell any dog or cat.[100]  If PAWS is enacted, then the AWA would exclude from the definition of “dealer” any person who sells not more than 25 dogs or cats or does not whelp more than 6 litters of dogs or cats.  PAWS, therefore, either with the “or” I italicized or with “and” instead, would increase the number of people who could be regulated as “dealers” under the AWA.

 

D. Limiting the Breeding of Female Dogs

       

The Puppy Protection Act of 2003 (H.R. 3484, 108th Congress) was introduced in 2003, but not considered in committee or on the floor of the House, and has not been reintroduced in the 109th Congress.  It would have prohibited dealers, research facilities, and exhibitors from breeding a female dog  before she is one year old, and prohibited them from whelping her more frequently than three times in any two-year period.  It would also have toughened the penalties under the AWA.  A similar bill had been introduced in both the House and Senate in 2001, but had not been considered in committee or on the floor of either body (H.R. 3058, S. 1478, 107th Congress).

 

IV. Conclusion

 

The Animal Welfare Act’s failure to cover the more than 9 billion farm animals slaughtered annually in the United States, and failure to cover 90 or 95 percent of animals used in research, makes it an exaggeration to say that the United States has a general animal welfare act.  The AWA is more like the Bald and Golden Eagle Protection Act,[101] the Chimpanzee Health Improvement, Maintenance, and Protection Act,[102] the Endangered Species Act,[103] or the Humane Slaughter Act,[104] all of which protect a limited number of species in particular ways.  Like these statutes, the AWA benefits some animals, but it does not prevent the most widespread violations of animal rights, including unnecessary experimentation and horrible factory-farm conditions, from being inflicted on most animals whom Congress could protect under its power to regulate interstate and foreign commerce.



* Henry Cohen is a legislative attorney with the Congressional Research Service of the Library of Congress, and is also the book review editor of The Federal Lawyer.  The views expressed herein are solely his.  [Mr. Cohen presented the ideas in this paper, March 23, 2006, as the distinguished speaker for the Journal’s inaugural “Scholarly Speaker Series on Animal Issues” held at MSU College of Law.  The event was generously funded by the Council of Graduate Students at MSU, and the MSU & Detroit College of Law Alumni Association.--Eds.]

[1] 7 U.S.C. §§ 2131-2159 (2006).

[2] 7 U.S.C. § 2143(a)(1) (2006).

[3] 7 U.S.C. § 2143(a)(4) (2006).

[4] See 7 U.S.C. § 2132(f) (2006) (definition of “dealer”).

[5] 7 U.S.C. § 2132(h) (2006) (definition of “exhibitor”).

[6] We presume that researchers use few rats and mice that were not bred for research.

[7] National Research Council, Science, Medicine, and Animals (2004) 16 (“90% of all animals used in U.S. research today are rats and mice.”); Ron Southwick, Senate Votes to Block Expansion of Lab-Animal Regulations, Chronicle of Higher Education, Mar. 1, 2002, at A25 (“Mice and rats account for 90 percent of the animals used in laboratory studies.”).

[8] Ron Southwick, Congress Drops Birds and Rodents From Law Shielding Animals in Research, Chronicle of Higher Education, May 17, 2002, at A31) (“Rats and mice account for 95 percent of the animals in laboratory studies.”).  Spokespersons for organizations on both sides of the animal rights debate have cited the 95 percent figure: “Rats and mice made up about 95 percent of all animals used in laboratory research, according to Trull and Wolff.” BNA Daily Environment Report, Sept. 4, 2001, at A4 (citing Frankie Trull, president of the National Association for Biomedical Research; and Liesel Wolff, congressional liaison for People for the Ethical Treatment of Animals).

[9] Rats and mice used in federally funded research have, on paper, some legal protection.  The Public Health Service Act, 42 U.S.C. § 289d (2006), directs the Secretary of Health and Human Services, acting through the Director of the National Institutes of Health (NIH) to establish guidelines for the proper care of animals used in biomedical and behavioral research funded by the Public Health Service.  NIH, Public Heath Service Policy on Humane Care and Use of Laboratory Animals defines “animal” as “[a]ny live, vertebrate animal,” and contains no exceptions. See http://grants.nih.gov/grants/olaw/references/phspol.htm.  The National Research Council, supra note 7, at 30, notes that rats, mice, and birds “are protected under Public Health Service Policy, though this oversight applies only to those research facilities that receive federal funding.”  An expert at the National Research Council informed me in a telephone conversation (Mar. 3, 2006) that most research using animals, including rats and mice, is federally funded and that the animals used are therefore protected by the PHS Act.  However, unlike APHIS in its enforcement of the AWA, neither the PHS nor NIH regularly inspects laboratory animal research, but instead relies on assurances (required at 42 U.S.C. § 289d(c)) from grantees that they are complying with PHS policy.

[10] 7 U.S.C. § 2132(g) (2006) (definition of “animal”).  There is a federal Humane Slaughter Act, 7 U.S.C. §§ 1901-1906, but it does not apply to birds and it does not regulate the conditions under which farm animals are raised.

[11] See U.S. Statistics for “Food Animals” Slaughtered in 2003, http://www.cok.net/lit/statistics2003.php (last visited April 5, 2006); Poultry Slaughter, http://www.upc-online.org/slaughter/2000slaughter_stats.html (last visited April 5, 2006); Number Of Animals Slaughtered For Human Use, http://www.veganoutreach.org/articles/chart.html (last visited April 5, 2006).

[12] 7 U.S.C. § 2143(b)(1)(B) (2006).  The AWA defines “research facility” as any person or entity “that uses or intends to use live animals in research, tests, or experiments,” and therefore includes both private as well as state and local government entities. 7 U.S.C. § 2132(e) (2006).

[13] 7 U.S.C. § 2143(c) (2006).  The AWA defines “Federal research facility” as “each department, agency, or instrumentality of the United States which used live animals for research or experimentation.”  7 U.S.C. § 2132(o) (2006).

[14] 7 U.S.C. § 2143(b)(3), (4) (2006).

[15] 7 U.S.C. § 2133 (2006).

[16] 7 U.S.C. §§ 2137, 2138 (2006).

[17] 7 U.S.C. § 2156 (2006).

[18] 7 U.S.C. § 2135 (2006).

[19] 7 U.S.C. § 2158(a) (2006).

[20] 7 U.S.C. § 2149 (2006).

[21] Pub. L. No. 89-544, 80 Stat. 350 (1966).

[22] Id. § 3.

[23] Id. § 2(g).

[24] Id. § 4.

[25] Id. § 5.

[26] Id. § 6.

[27] Id. § 7.

[28] Id. § 4.

[29] Id. § 13.

[30] Id. § 14.

[31] Id. § 2(h).

[32] S. Rep. No. 1281 (1966), reprinted in 1966 U.S.C.C.A.N. 2635, 2636.

[33] Pub. L. No. 91-579, 84 Stat. 1560 (1970).

[34] See notes 66-67.

[35] Pub. L. No. 91-579, § 3(3) (amending § 2(g)), 84 Stat. 1560 (1970).

[36] Id. § 3(3) (amending § 2(h)).

[37] Id. § 14 (amending § 13).

[38] Id.

[39] H.R. Rep. No. 91-1651 (1970), reprinted in 1970 U.S.C.C.A.N. 5103, 5104.  The report added: “This committee and the Congress, however, expect that the work that’s done behind that laboratory door will be done with compassion and with care.” Id.

[40] Pub. L. No. 94-279, 90 Stat. 417 (1976).

[41] Id. § 2 (amending § 1(a)).

[42] Id. § 3 (amending § 2(f) (definition of “dealer”)).

[43] Id. § 6 (amending § 6).

[44] Id. § 17 (creating § 26(a)).

[45] Id. (creating § 26(b)).

[46] Id. (creating § 26(c)).

[47] Id. (creating § 26(d)).

[48] Pub. L. No. 99-198, tit. XVII, subtit. F, §§ 1751-1759, 99 Stat. 1645-1650 (1985). 

[49] Id. § 1752(a)(3)(A); 7 U.S.C. § 2143(a)(3)(A).

[50] Id. § 1752(a)(3)(B); 7 U.S.C. § 2143(a)(3)(B).

[51] Id. § 1752(a)(3)(C); 7 U.S.C. § 2143(a)(3)(C).

[52] Id. § 1752(a)(3)(D); 7 U.S.C. § 2143(a)(3)(D).

[53] Id. § 1752(a)(3)(E); 7 U.S.C. § 2143(a)(3)(E).

[54] Id. § 1752(a)(6)(A); 7 U.S.C. § 2143(a)(6)(A).

[55] Id. § 1752(a)(7)(A); 7 U.S.C. § 2143(a)(7)(A).

[56] Food, Agriculture, Conservation, and Trade Act Amendments of 1991, Pub. L. No. 102-237, ' 1004, 105 Stat. 1894 (1991), made a technical correction to the 1990 amendments, which does not warrant a section in this article titled A1991 Amendments.@

[57] Food, Agriculture, Conservation, and Trade Act of 1990, Pub. L. No. 101-624, tit. XXV, ' 2503, 104 Stat. 4066-4067 (1990); 7 U.S.C. ' 2158.  A Adealer@ is defined to include any person who buys an animal, and could therefore include a research facility. 7 U.S.C. ' 2132(f).  The five-day requirement in the 1990 amendments should not be confused with the one applicable to dealers and exhibitors, which was in the original 1966 act and remains in effect. 7 U.S.C. ' 2135.

[58] The regulations do not address this question. See 9 C.F.R. § 2.133(a) (2005).

[59] See supra text accompanying note 47.

[60] Farm Security and Rural Investment Act of 2002, Pub. L. No. 107-171, ' 10302, 116 Stat. 492 (2002); 7 U.S.C. ' 2156(a)(2).

[61] See supra note 45.

[62] The new exception applies only to the prohibition on sponsoring or exhibiting a bird, and could not logically have been applied to the “five verbs” prohibition. See supra text accompanying note 60.  The new exception requires a lack of knowledge that someone had knowingly engaged in one of the five verbs with respect to a bird.  The “five verbs” prohibition prohibits a person from knowingly engaging in one or more of the five verbs, but, if a person had knowingly done so, then he would know that someone, namely he, himself, had knowingly done so.

[63] See supra note 46.

[64] Farm Security and Rural Investment Act of 2002, Pub. L. No. 107-171, ' 10301, 116 Stat. 491 (2002); 7 U.S.C. ' 2132(g).

[65] See supra notes 7 and 8.

[66] The expansion of the definition of Aanimal@ to include other warm-blooded animals took effect December 24, 1971. Animal Welfare Act of 1970, Pub. L. No. 91-579, ' 23 (1970).  USDA regulations issued that day excluded birds, rats, and mice.  See, 36 Fed. Reg. 24,919 (Dec. 24, 1971).

[67] The 1971 regulations did not limit the exclusion to birds, rats, or mice bred for research.  Later versions defined “animal” to exclude “[b]irds, rats of the genus Rattus and mice of the genus Mus bred for use in research,” thereby excluding birds whether or not bred for research but protecting rats and mice not bred for research. See, e.g., 54 Fed. Reg. 36,120 (Aug. 31, 1989).  The regulation today, conforming to the 2002 amendment to the statute, excludes “birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research,” thereby for the first time protecting birds not bred for research and continuing to protect rats and mice not bred for research. 9 C.F.R. § 1.1 (2005).

[68] 7 U.S.C. § 2132(g).

[69] There was no debate on the floor of the House or Senate, and no committee report, discussing this amendment.

[70] See Henry Cohen, The Legality of the Agriculture Department=s Exclusion of Rats and Mice from Coverage Under the Animal Welfare Act, 31 St. Louis U. L.J. 543 (1987).

[71] The Department of Agriculture acknowledged, “The statutory definition of ‘animal’ specifically includes guinea pigs and hamsters, and we do not have the authority to remove these rodents from the regulations,” 54 Fed. Reg. 36, 113 (Aug. 31, 1989), thereby implying that they did have the authority to exclude other rodents.  It is clear, however, that the reason that guinea pigs and hamsters were singled out in the 1970 amendments is that they were named in the original 1966 statute, and, when Congress expanded the statute in 1970 to include other warm-blooded animals, it did so by adding the reference to warm-blooded animals without deleting the names of the warm-blooded animals listed in the 1966 statute.

[72] ALDF v. Madigan, 781 F. Supp. 797, 806 (D.D.C. 1992).

[73] ALDF v. Espy, 23 F.3d 496 (D.C. Cir. 1994).

[74] ALDF v. Glickman, 154 F.3d 426, 429 (D.C. Cir. 1998) (en banc), cert. denied, 526 U.S. 1064 (1999) (upholding plaintiffs’ standing to challenge allegedly inadequate regulations for primate dealers, exhibitors, and research facilities).

[75] Alternatives Research & Dev. Found. v. Glickman, 101 F. Supp. 2d 7 (D.D.C. 2000).

[76] The settlement was filed with the U.S. District Court for the District of Columbia on September 28, 2000, with the USDA agreeing to pay a portion of the plaintiffs’ legal fees in accordance with the Equal Access to Justice Act (EAJA). 28 U.S.C. § 2412(d)(1)(A), available at http://www.aphis.usda.gov/ac/q4.html.  EAJA requires the federal government to pay the prevailing party’s attorneys’ fees only when the court finds that the position of the United States was not substantially justified and that no special circumstances make an award unjust.  The Supreme Court has held that “substantially justified” means “reasonable.” Pierce v. Underwood, 487 U.S. 552, 565, 568 (1988).

[77] Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2001, Pub. L. No. 106-387, ' 772, 114 Stat. 1549A-45 (2000).   

[78] Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2002, Pub. L. No. 107-76, ' 732, 115 Stat. 736 (2001).  Whereas the FY2001 appropriations act straightforwardly said that none of the funds appropriated by the act Ashall be used to issue a notice of proposed rulemaking@ or Apromulgate a proposed rule,@ the FY2002 appropriations act confusedly said that none of the funds appropriated by the act Ashall be used to issue a proposed rule for which the comment period would close prior to September 30, 2002, final, or interim final rule pursuant to notice and comment rulemaking.@

[79] See supra note 64.

[80] Madigan, supra note 72, at 803.

[81] Id.

[82] Id. at 803 n.4.

[83] Keith B. Richburg, Agriculture Inspectors Scored for Neglecting Animal Welfare, Wash. Post, Nov. 9, 1984, at A25.

[84] Esther F. Dukes, The Improved Standards for Laboratory Animals Act: Will it Ensure that the Policy of the Animal Welfare Act Becomes a Reality?, 31 St. Louis U. L.J. 519, 525 (1987) (capitalization altered).  The act referred to in the title of this article was the title of the Senate amendment that became the 1985 amendments to the Animal Welfare Act. See H.R. Conf. Rep. No. 99-447, at 592 (1985), reprinted in 1985 U.S.C.C.A.N. 2251, 2518.

[85] Farm Security and Rural Investment Act of 2002, Pub. L. No. 107-171, ' 10304, 116 Stat. 492 (2002); 7 U.S.C. ' 2132 note.

[86] The National Research Council’s report, supra note 7, is not the report mandated by Pub. L. No. 107-171.  An expert at the National Research Council informed me in a March 3, 2006 telephone conversation that the reason that the National Research Council did not prepare the report is that it received no federal funding for the purpose, either by congressional appropriation or from any federal agency. See supra note 9.

[87] 151 Cong. Rec. S4,605 (daily ed. Apr. 28, 2005).  The Senate passed the bill by unanimous consent, which means that it passed it without senators individually voting on it.  There was no debate on the floor of the Senate and no Senate committee report concerning the bill.

[88] The bill’s not repealing all of section 2156 may be a drafting error, as it seems unlikely that the drafters intend that two similar but not identical statutes exist simultaneously, with one of them containing no penalties.

[89] 151 Cong. Rec. S1,500 (daily ed. Feb. 16, 2005) (statement of Sen. Ensign).

[90] 7 U.S.C. § 2156(f).

[91] See supra note 89.  

[92] 7 U.S.C. § 2132(f).

[93] 7 U.S.C. § 2132(c)(1).

[94] If I sell you some other non-wild animal, then I am not a “dealer” unless I derive more than $500 gross income from the sale of animals other than wild animals, dogs, or cats, during any calendar year. 7 U.S.C. § 2132(f)(ii).  APHIS regulations, however, make a person a “dealer” if he sells an “exotic animal,” as the regulations define the term, even if the exotic animal is not a wild animal. 9 C.F.R. § 1.1 (2005).  “Wild animal” is not defined in the AWA, but is defined in the regulations to include “any animal which is not or historically has been found in the wild, or in the wild state, within the boundaries of the United States, its territories, or possessions.” 9 C.F.R. § 1.1 (2005).

[95] 7 U.S.C. § 2132(f)(i).

[96] 151 Cong. Rec. S6,031 (daily ed. May 26, 2005) (statement of Sen. Santorum).

[97] 7 U.S.C. § 2132(f)(ii).  See supra note 94.

[98] PAWS would thus eliminate the exclusion of a person who sells a wild animal from the definition of “dealer.”

[99] A statement by the sponsor of the Senate bill suggests that this was the intention: “PAWS would regulate breeders who raise seven or more litters of dogs or cats each year. . . .  In addition, this broad ranging legislation would cover importers and other non-breeder dealers who sell more than 25 dogs or cats per year. . . .” 151 Cong. Rec. S6,031 (daily ed. May 26, 2005) (statement of Sen. Santorum).

[100] See supra note 97.  The sentence accompanying the present footnote oversimplifies by omitting the AWA’s reference to “wild animals,” which is quoted in the sentence accompanying note 97.

[101] 16 U.S.C. §§ 668-668d.

[102] 42 U.S.C. § 481C.

[103] 16 U.S.C. §§ 1531-1544.

[104] 7 U.S.C. §§ 1901-1906.

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