Detailed Discussion of Great Apes under the AWA
Animal Legal & Historical Center
Place of Publication:
Michigan State University College of Law
I. Animal Welfare Act Introduction
The Animal Welfare Act (AWA) was enacted to ensure that “small helpless creatures” receive the “care and protection of a strong and enlightened public.” While they are neither small, nor particularly helpless, Congress intended that the AWA would protect Great Apes from “the stupid brutishness of men who are too ignorant of their own interests to be gentle and humane.” As originally enacted in 1966, the AWA (initially called the Laboratory Animal Welfare Act) authorized the United States Department of Agriculture (USDA) to regulate the use of Great Apes by any research facility that also maintained dogs and cats for research. Several decades, and several amendments later, the AWA and USDA’s accompanying regulations govern the care and maintenance of all gorillas, chimpanzees, orangutans, bonobos, and gibbons that are kept and transported for certain purposes, including: scientific research, exhibition, and commercial breeding and sale. However, those laws do not regulate the possession or treatment of Great Apes that are kept as pets. All individuals and entities that possess apes for regulated purposes (hereinafter “regulated facilities”) must comply with certain minimum standards governing the handling, housing, feeding, maintenance, veterinary care, transport, and psychological well-being of those animals. In order to ensure that those standards are being met, dealers and exhibitors must be licensed, and research facilities and commercial transporters must be registered with the USDA’s Animal and Plant Health Inspection Service (APHIS). The two main mechanisms by which APHIS monitors the treatment of apes by regulated facilities are: (1) reporting requirements; and (2) inspections. APHIS’s Animal Care unit enforces the Act from three offices located in Maryland, North Carolina, and Colorado. As of FY 2008, the agency had 99 inspectors to conduct inspections and investigate complaints of animal abuse and other AWA violations. That year, the inspectors conducted 15,722 inspections of more than 10,000 regulated facilities.
This paper first addresses the need for protection of Great Apes by the AWA, and the method by which they are afforded that protection. It then identifies and analyzes the types of activities that are regulated under the AWA, including commercial trade, exhibition, scientific research, and transportation. The Act requires that apes possessed for any of those purposes are maintained pursuant to certain minimum standards of care. Those standards are outlined and explained in Section IV. While APHIS is ultimately responsible for enforcing the AWA and USDA regulations, the agency does not have exclusive regulatory authority over apes used for those purposes. In addition to a variety of other federal laws, all regulated facilities must comply with all state and local laws governing the import, possession, use, and treatment of apes. The final portion of this paper analyzes the effect that the AWA has on those state and local laws.
II. Protection of Great Apes Under the Animal Welfare Act
A. Purpose of Legal Protection for Apes
Great Apes living in captivity depend upon their human owners for basic sustenance, shelter, physical care, and psychological stimulation. Life in captivity is so far removed from their natural existence that it takes extreme care and diligence on the part of their caretakers to provide even a fraction of the overall quality of life that they would otherwise have in the wild. Apes are wild animals that naturally become more difficult to humanely handle and maintain as they age. As they increase in size and strength and become more temperamental, they become particularly susceptible to neglect and abuse by private caretakers and institutional keepers. Many individuals acquire young apes as pets, only to find that as adults they are not well suited to domestic life and can pose a physical threat to humans and other animals. As a result, many adult apes are either disposed of by their owners or are physically confined and generally isolated from the outside world. Furthermore, even the most well-intentioned pet owners typically lack the economic, educational, and veterinary resources to provide those animals with adequate care. On the other hand, institutional owners that possess Great Apes for commercial breeding or sale, exhibition, or scientific research often have an economic incentive to minimize the costs of maintaining the animals in order to maximize profits. Without being legally compelled to do so, those institutions may not provide the apes with care beyond that which is minimally necessary to keep the animals alive. Many apes spend their lives in cages, or small enclosures, which is tremendously detrimental to the psychological and physical health of those animals. The case of a chimpanzee, Oliver, illustrates this point. Oliver was acquired in the early 1970’s by animal trainers who removed his teeth and used him for entertainment purposes. When they no longer wanted Oliver, they sold him to a lawyer, who promoted him as a “missing-link” for a while and then sold him when that didn’t pan out. He was transferred to several theme parks and private owners until he was purchased for medical research in 1989. He spent the next seven years in a 7 x 5 x 5 foot cage, and as a result of the physical confinement, his muscles atrophied and his limbs trembled. When he became old, blind, and arthritic and was no longer of commercial value, he was sent to a sanctuary. Throughout his life, Oliver suffered the physical and psychological effects of confinement, isolation, and substandard care by human caretakers. Not only was Oliver permanently deformed by the tooth removal and physically damaged by the confinement, but he was allegedly abused, and for most of his life he was isolated from other chimpanzees. Many of the conditions that he endured are now prohibited by the AWA.
Perhaps more troubling than neglect, confinement, and isolation is the physical abuse of apes, primarily chimpanzees, that are trained to perform for entertainment. There are currently about 200 captive chimpanzees involved in the U.S. entertainment industry, and according to animal law attorney Bruce Wagman, “the only way we know how to train them is by abject fear and physical abuse.” Wagman was instrumental in the rescue of three trained chimpanzees that, according to court documents, were regularly beaten (with sticks, locks, chains, and electric prods), punched, and kicked as part of the training regime. Although chimpanzees aren’t the only type of ape used for entertainment in the U.S., they are the most common. Other apes are used for public exhibition and are equally susceptible to abuse. In one widely publicized case, a well-known animal trainer in Las Vegas was filmed routinely shaking, punching, and beating his orangutans while handlers held the animals in position. The trainer maintained that his actions were a “proper” and “necessary” manner of treating his animals. The AWA does not prohibit the use of apes for entertainment purposes, but it does make it illegal to physically abuse animals used in entertainment. Both of these cases represent gross violations of theAWA and the Act not only establishes civil and criminal penalties for such behavior, but it also allows the government to ban the commercial use of apes by those individuals.
In addition to providing for the physical well-being of apes, the AWA includes provisions that address the psychological needs of those animals. This is a very unique feature of the Act that is currently limited in scope to Great Apes and other primates. For the first two decades since its inception, the Act only addressed the physical needs of apes, such as food, water, shelter, and freedom from physical abuse. Under the early versions of the Act, it was legal to keep an ape in complete physical and social isolation in an empty cage, as long as the cage was kept clean and provided shelter from the elements. As a result of isolation, lack of environmental stimulus, and small enclosures, many apes, particularly chimpanzees used in scientific research, suffer from depression, post-traumatic stress, anxiety, and other psychological disorders. In 1985, Congress amended the AWA to provide for the psychological, social, and environmental needs of captive apes and other primates. The amendments directed the Secretary of the USDA to develop minimum standards of care that address those needs. All regulated facilities are required to comply with those regulations, as well as all other minimum standards of care, as discussed in Section IV, below.
B. Method of Legal Protection for Apes
i. Regulation of Certain Activities Involving Apes
Under the Animal Welfare Act, APHIS’s Animal Care unit is responsible for ensuring the welfare of Great Apes that are possessed and transported for commercial trade, exhibition, and scientific research. The agency regulates the possession of captive apes for those purposes by: (1) licensing dealers and exhibitors; and (2) registering scientific research facilities and carriers and intermediate handlers. All regulated facilities are required to comply with certain administrative requirements, like keeping records and filing reports; and minimum care standards, such as maintaining safe enclosures and providing wholesome food. Some of the rules apply equally to all regulated facilities, as explained in Section IV, below. However, each regulated facility is also subject to a unique set of rules regulating the specific activities for which an ape is used. For example, exhibitors have to comply with safety requirements like installing barriers to prevent contact between apes and the viewing public; but because dealers and scientific research institutions do not generally display their apes, they are not subject to those rules. Likewise, research facilities must file an annual report with APHIS regarding the experiments they conduct on apes; since dealers and exhibitors cannot conduct scientific experiments on apes, they are not subject to the reporting requirement.
ii. Enforcement of the Animal Welfare Act
Any regulated facility that operates without a USDA license or registration, or that violates any relevant provision of the AWA is subject to a variety of administrative, civil, and criminal penalties. There are three possible levels of enforcement of AWA violations within the USDA. At each level, the investigating official has complete discretion as to whether to take any remedial action against violators or to do nothing. The first tier of enforcement consists of the APHIS inspectors who conduct periodic unannounced inspections of all regulated facilities to check for AWA violations. Research facilities must be inspected at least once a year. Other regulated facilities may be inspected more or less often, depending on certain risk criteria, such as previous AWA violations and the presence of dangerous animals. In addition to the regular inspections, APHIS officials investigate complaints made to the agency by private citizens. If an inspector finds any AWA violations, facilities are given a certain amount of time, ranging anywhere from a day to a year, to correct those violations. The inspectors are required to conduct as many follow-up inspections as are necessary to ensure that all “deviations or deficiencies” are corrected. By voluntarily correcting a violation, a regulated facility may avoid civil, criminal, and administrative penalties for that violation. All violations, whether corrected or not, remain on a facility’s record, and may be utilized to demonstrate a pattern of non-compliance justifying further administrative action. If an ape is suffering or otherwise in imminent peril, the agency may confiscate the animal; however the Act mandates that certain, potentially time-consuming, procedures be followed before an ape is removed. In addition to confiscating animals and pursuing voluntary compliance, APHIS inspectors may take a variety of remedial actions against violators, including:
- Doing nothing;
- Issuing informal or formal warnings;
- Entering into stipulation agreements (whereby facilities generally agree to pay a small fee to forestall further administrative action);
- Forwarding information to state and local officials for local prosecution; and
- Referring the case to the agency’s Investigative and Enforcement Unit (IEU) for investigation.
The IEU is the second tier of AWA enforcement. When a case is referred to an investigator in the IEU, he or she may pursue a variety of remedial actions including:
- Doing nothing;
- Issuing a warning;
- Levying a fine (which may be up to $10,000 per violation per day); or
- Referring the case on to the highest level of enforcement, USDA’s general counsel.
The general counsel may also choose to take no action or may pursue civil and criminal penalties, including: fines, cease-and-desist orders, criminal prosecution, and license suspension or revocation. For example, in 1992 APHIS inspectors found 980 facilities in violation of the AWA. Of those cases, 616 resulted in warnings; 115 were resolved through stipulation agreements; 105 were referred on to the IEU; and 17 were ultimately referred to USDA’s general counsel.
In its most basic form, the AWA sets minimum standards of care for certain captive apes and it does so by authorizing the USDA to enforce those standards. Beyond this fundamental premise, the bulk of the Act is dedicated to explicating the scope of protection that it affords to apes and other animals. In order to understand what the scope of that protection is, it is necessary to understand which apes are protected, who is regulated by the AWA, and what exactly is required or prohibited by the Act.
C. Scope of Legal Protection for Apes
The AWA does not protect all captive Great Apes equally; in fact it does not protect certain apes at all. The rules and regulations apply only to apes that are transported and possessed for commercial trade, exhibition, and scientific research. Apes that are possessed for any other purpose are not protected by the Act. For example, any person that possesses an ape as a pet or as part of a private menagerie does not need to be licensed or registered with the USDA, and is not required to comply with any portion of the AWA. Even if APHIS receives complaints of abuse, neglect, or unsafe conditions involving apes maintained by unregulated individuals, the agency will not investigate those allegations. Also, certain activities that are otherwise regulated under the AWA may not be regulated when conducted by particular actors. For example, it is generally illegal to acquire, breed, and sell apes, either wholesale or retail, without being licensed by the USDA. However, public research facilities and public agencies are exempt from that licensure requirement. So, a private person who breeds chimpanzees for sale to research facilities must be licensed by the USDA, but a government agency that maintains a breeding colony for the same purpose does not need to be licensed to do so.
Any inquiry into the scope of protection afforded to a particular ape under the AWA is a two-part analysis: (1) does the AWA regulate the activity for which the ape is possessed; and (2) if so, what are the rules governing the possession and use of that animal? Because the Act only regulates the possession and transportation of apes for commercial trade, exhibition, and scientific research, an ape that is possessed for any other purpose is not protected under the AWA. If an ape is possessed for a regulated purpose, then the remainder of the inquiry involves the extent to which he is protected under the Act. Section III discusses the types of activities that are regulated under the AWA, including: (1) commercial trade; (2) exhibition; (3) scientific research involving apes; and (4) commercial transport of apes. Each regulated activity has certain rules governing the possession and use of apes for that particular purpose; those rules of limited applicability are included in Section III. However, all regulated facilities that possess apes for any purpose must also comply with general legal requirements governing the housing, maintenance, care, and transport of apes. Those general minimum standards of care are outlined and discussed in Section IV.
III. Regulated Activities Involving Great Apes
A. Activities Requiring USDA Licensure: Commercial Trade and Exhibition of Apes
Although facilities that engage in the commercial trade and exhibition of apes are subject to specific rules regulating their respective activities, both types of facilities are regulated by APHIS in the same manner. Any person that wishes to engage in the commercial trade or exhibition of a Great Ape must possess a USDA license prior to conducting any regulated activity. The agency issues three different licenses; the first two are issued to qualified “dealers” that engage in the commercial trade of apes and the third type of license is issued to qualified exhibitors.
In order to qualify for licensure, an applicant must be at least 18 years of age, and must submit a completed application form to APHIS, along with an application fee and annual licensure fee. No person can possess more than one license, so if a person both breeds and exhibits apes, he must apply for a license for the activity that is “predominant for his operation.” Prior to issuing any license, APHIS officials conduct an inspection of an applicant’s animals, premises, facilities, vehicles, equipment, and records to ensure that they are in compliance with the AWA and USDA regulations. A person is ineligible for licensure if: (1) he or she would be operating in violation or circumvention of any federal, state, or local law; (2) his or her facilities and provisions for housing, maintaining, or transporting apes are not in compliance with the minimum standards outlined in Section IV, below; (3) he or she has been convicted of animal cruelty within the previous year; or (4) he or she has violated any federal, state, or local law pertaining to the transportation, ownership, neglect, or welfare of animals.
Once they are licensed, all dealers and exhibitors must comply with all AWA rules and USDA regulations, as well as all other federal, state, and local laws governing the import, export, transport, possession, use, and treatment of Great Apes. Any licensee that violates any Federal, state, or local law pertaining to the transportation, ownership, neglect, or welfare of animals may have his or her license terminated at any time. In addition to regulating the possession, use, and treatment of apes, the Act regulates the acquisition of apes by licensees. It is illegal for a licensee to obtain an ape by false pretenses or from an individual that should be licensed but is not.
All licensees are required to maintain a variety of records on their apes that document all purchases, sales, transfers, births, and deaths. While those records do not need to be filed with APHIS, they must be provided to any agency official upon request. In addition, all dealers must file an annual report documenting the gross profit derived from the sale of apes, and all exhibitors must file an annual inventory of the number of apes (and other regulated animals) owned, possessed, leased, or exhibited by the facility.
Any person that operates as a dealer or exhibitor without a license and any licensee that violates the AWA may be subject to civil and criminal penalties, as well as license suspension or revocation. If a person’s license is suspended or revoked, he or she cannot obtain another license in his or her own name during the period of suspension, or in the case of a revocation, ever. The same rule applies to any business or legal entity in which the licensee has a “substantial interest,” financial or otherwise. That entity is ineligible for licensure, regardless of whether the suspended or revoked license was issued in the name of an individual or the entity. This rule effectively prevents a person from circumventing the suspension or revocation of his or her licensure by establishing or joining a business or other legal entity in order to operate under that entity’s license. Also, employees or agents of a licensee that lost his license for malfeasance are ineligible for licensure for the same period of time as the licensee if they were involved in the illegal conduct. APHIS has the authority to deny or revoke any license that the agency determines was obtained in the name of another person or entity in order to circumvent the suspension, denial, or termination of a license.
i. Commercial Trade (Class A and Class B Licenses)
The AWA regulates the possession of apes by “dealers”  for commercial trade purposes. The term “dealer” includes any individual, private business organization, non-profit corporation, or other private institution that: (1) delivers for transport, transports, breeds, purchases, sells, or negotiates the sale of a Great Ape; (2) in “commerce” (meaning that a transaction is interstate; international; intrastate, but involves crossing through any place outside of that state; or any transaction which affects such “commerce”); (3) for profit or compensation. Any individual, entity, or activity that falls outside of this definition is not a “dealer” and is not regulated under the AWA. Individuals that buy and possess apes for personal use as pets or as part of a private menagerie are not considered “dealers.” Likewise, federal, state, and local government agencies and institutions that maintain apes for breeding, sale, or similar purposes are not considered “dealers.” A typical dealer is someone who breeds or buys “surplus” apes from private or institutional owners that no longer want them and then sells the apes to private or institutional buyers that they find through exotic pet classifieds, trade journals, internet advertising, or live animal auctions.
The USDA issues two different types of licenses to dealers. “Class A” licensees are breeders that deal only in the apes that they breed and raise. “Class B” licensees are all other dealers that are not breeders, including: suppliers, brokers, wholesalers, retailers, auction operators, and private transporters. Retail pet stores are generally not regulated under the AWA; however any pet store that sells or exhibits exotic animals, including Great Apes, must possess a Class “B” license to do so.
Although the commercial trade of apes has historically been lucrative for both breeders and dealers, the market has shifted dramatically in recent years for a variety of reasons. The availability of pet apes has diminished due to international and federal restrictions on the import and sale of those animals, which has driven the price of domestically bred animals up significantly. One of the larger breeders in Missouri recently sold a baby chimpanzee for $60,000, and told an undercover reporter that the market price for babies is $65,000. Also, many state and local governments have banned the possession of apes as pets, which has reduced the demand. With fewer individuals keeping apes as pets, it has become increasingly difficult to find veterinarians outside of institutional settings that have experience in treating apes. According to the American Veterinary Medical Association, there are more than 76,000 member veterinarians in the United States and of those, only 170 have contact with primates on a regular basis. Furthermore, many high profile attacks in recent years, along with an increasing awareness of the public health risks posed by apes have made private ownership of apes much less attractive to both pet owners and to the communities in which pet apes reside. The waning demand for pet apes has had an incidental effect on breeders. A large chimpanzee breeder in Missouri, who is perhaps best known as the source of Travis, the 14 year old, 200 pound chimpanzee that mauled a woman in Connecticut 2009, has according to USDA license records, stopped breeding chimpanzees for commercial sale. She had been breeding and selling chimpanzees from her compound in Festus Missouri since 1981, and during that time at least 3 of her chimps escaped from their owners and were fatally shot.
The use of apes in entertainment has similarly declined for many of the same reasons as the decline in pet apes. Additionally, with the development of computer animation, there is no need to utilize live apes for television and motion pictures, and live entertainers have come under increased legal and public scrutiny with several recent cases of ape abuse uncovered within the entertainment industry. In 2005, the “main supplier” of Great Apes for Hollywood and other entertainment stopped breeding and selling apes and sent his remaining breeding and performing animals, sixteen chimpanzees and six orangutans to a Florida sanctuary.
While it is difficult to gage whether the demand for apes, particularly chimpanzees, for scientific research has actually decreased in recent years, it is certain that the supply has. One of the largest breeders of apes in the U.S., the National Institutes of Health (NIH), which incidentally fell within the AWA’s licensure exemption as a Federal agency, was a key supplier of chimpanzees for scientific research until recently. In the mid-1990’s, the NIH’s focus shifted from breeding and maintaining captive chimpanzees for research to establishing a program for the lifetime care of the agency’s existing apes. A 1995 report published by the Institute for Laboratory Animal Research (ILAR) estimated that at the time there were 1,447 captive chimpanzees in biomedical research facilities throughout the U.S., and that it would cost $3.14 billion dollars to maintain those animals in captivity for the remainder of their lives. Because of the high cost of maintaining chimpanzees and relative lack of suitable retirement facilities, the National Institutes of Health has stopped breeding chimpanzees for research purposes.
While many of the largest USDA licensed (and unlicensed) breeders of apes have ceased their operations in recent years, there is still a market for apes in the United States. Both Class A breeders and Class B dealers have willing private and institutional buyers. Baby apes fill a niche among exotic pet owners and exhibitors that use them for circuses, live acts, commercials, publicity, entertainment productions, exhibitions, wild animal parks, and even children’s birthday parties. Older chimps that are less marketable because they are much more dangerous and not generally regarded as “cute” are generally sold or given to dealers, sent to exotic animal auctions, and sold to research facilities.
ii. Exhibition (Class C License)
Animal exhibitors are public or private entities that publicly display apes for performances; photo opportunities; commercial promotion or advertising; television, movies, and other productions; recreational or educational observation; and direct contact opportunities. Most exhibitors, including individuals, businesses, public and private zoos, circuses, amusement and wildlife parks, and educational facilities, must be licensed in order to publicly display Great Apes. Federal agencies are exempt from the licensure requirement, but they must comply with AWA’s minimum standards of care and are inspected by APHIS. Sanctuaries that maintain apes are not considered exhibitors as long as they are closed to the public and do not use the animals for promotional purposes or fundraising. Foreign circuses, acts, or shows that perform in the U.S. are subject to the AWA; they must have a licensed U.S. agent that is legally responsible for the show. Although rodeos are generally exempt from the AWA, they are only exempt to the extent that they display farm animals and horses. Circus-type acts, such as chimpanzees riding horses, are not exempt and must be licensed.
All licensed exhibitors (called “Class C licensees”) must comply with minimum standards of care governing the shelter, housing, handling, transportation, sanitation, nutrition, and veterinary care of apes outlined in Section IV, below. In addition, the USDA has established the following rules to mitigate the potential health, safety and welfare risks involved with the public exhibition of those animals:
1. HANDLING: Apes must be handled so there is minimal risk of harm to the animals and cannot be drugged or tranquilized to facilitate public handling. Young apes cannot be exposed to “rough or excessive” public handling. Whenever the public is allowed physical contact with an ape, an animal handler or employee must be present.
2. PERFORMANCES: Apes must not be physically abused to induce performances or to ensure docile behavior. Conditions of performances and periods of display must be “consistent with their good health and well-being.” If climactic conditions, such as temperature and humidity, are potentially dangerous for an ape, “appropriate measures must be taken to alleviate the impact of those conditions.”
3. REST: Performing apes must be allowed to rest between shows for a length of time that is equal to one performance.
4. PUBLIC FEEDING: If the public is allowed to feed apes, the food must be provided by the facility and must be “appropriate” to meet their nutritional needs.
5. SAFETY: When apes are exhibited, there must be “sufficient distance and/or barriers” between the animals and the viewing public to ensure the safety of both.
Although these standards theoretically protect apes and in some cases the viewing public, their general lack of specificity has proven problematic, both in terms of compliance and enforcement. For example, permanent exhibits must have a “barrier” between an ape’s primary enclosure and the public viewing area, but neither the regulations nor APHIS guidelines have explained what sort of a “barrier” satisfies this safety requirement. As a result, some barriers are constructed so close to the animal cages that the public can literally reach into the cages, other barriers are as low as 12 inches off the ground, and still others consist of a rope or plastic chain. APHIS inspectors have expressed frustration in such unsafe barriers, both in terms of preventing the escape of an ape and restricting public access to the animals, yet they cannot force exhibitors to improve those conditions because of the lack of specific guidelines in the regulations. According to APHIS officials, if an animal has not previously escaped through a barrier, then regardless of construction materials or dimensions, the barrier can be considered safe.
a. Unique Issues for Apes in Traveling Shows
Apes that are possessed by traveling exhibitions are particularly susceptible to the physical discomfort and psychological stress associated with traveling. Even when an exhibitor is in compliance with the AWA and USDA regulations, those animals may be maintained under particularly tenuous conditions. For example, when an ape is traveling from one location to another, he may be kept in a cage that is just large enough to turn around and sit in an upright position without his head touching the top of the cage. Larger apes can be kept in even smaller, more restrictive cages for their own safety or the safety of others. Whenever the show is not actually moving to a new location, apes must be maintained in cages that meet the size requirements and other standards outlined in Section IV, below. While this requirement provides an ape with temporary respite from cramped traveling conditions, the regulations do not set limits on the duration of each period of transit between locations or on the total amount of time an ape could be kept in a traveling show without a period of rest in a permanent facility. Also, unlike all permanent facilities, traveling shows do not have to provide the apes with environmental enrichment objects and activities while they are traveling; their cages can be empty. As a result, apes in traveling shows may be legally maintained for a majority of the time, and for their entire lives, under certain conditions that would otherwise be considered inhumane and illegal if those same animals were located in permanent facilities.
Although the apes kept in traveling shows may be maintained under conditions that are less conducive to their health and welfare than their counter-parts in permanent facilities, the AWA does offer those apes a certain level of legal protection. Traveling exhibitors must comply with the rules governing the display of apes (outlined above) and all applicable provisions in Section IV, below. Despite the transitory nature of their businesses, all traveling exhibitors are subject to periodic routine inspections by APHIS officials, as well as other inspections in response to public complaints. Unfortunately, those exhibitors are not required to provide APHIS with their travel itineraries, so although APHIS inspectors routinely find AWA violations upon initial inspections, they are often unable to find those exhibitors to conduct follow-up inspections. In 2010, USDA’s Office of Inspector General (OIG) investigated this problem and found that in many cases, the animals that are in the most critical need of agency supervision and follow-up inspections are simply moved by exhibitors to avoid administrative intervention. During that audit, OIG evaluated 40 traveling exhibitors that were cited with 165 serious violations that placed either the animals or the public at risk. Because of the critical nature of the violations, APHIS inspectors were required to conduct follow-up inspections within 45 days of the initial visit. The agency was unable to locate six of those 40 exhibitors, and as a result it had no idea what became of the animals and allowed the licensees to evade disciplinary actions. OIG pointed out that APHIS could easily correct this serious problem by amending its own regulations to mandate that all traveling exhibitors submit an itinerary. The agency agreed, but has issued no such regulation.
b. Exhibitor Licensure to Circumvent State and Local Bans on the Possession of Great Apes as Pets
While the AWA does not prohibit or regulate the possession of Great Apes as pets, many state and local laws ban their use as pets. Some of those state and local laws do allow the keeping of restricted animals for exhibition, if licensed by the USDA. Therefore, there is an incentive for private owners to become federally licensed exhibitors to avoid the state and local pet bans. As the number of state and local governments with those pets bans has increased, so too has the number of individuals that have become licensed exhibitors to circumvent those bans. A 1996 audit by the USDA’s Office of Inspector General (OIG) found that 70% of the licensed exhibitors that OIG visited were not true exhibitors, but rather pet owners. While USDA regulations expressly prohibit the use of a license to circumvent state and local laws, and APHIS is aware of this happening, the agency does not require any proof of exhibition activities. Instead, exhibitors can renew their licenses based upon a declaration of their intent to exhibit, rather than on any actual proof of exhibition. In one case, a woman in Arizona attempted to obtain a Class C exhibitor’s license in order to keep a 2-year old retired performing chimpanzee named Joey that she bought in Texas for $25,000. Under Arizona law, chimpanzees are considered “inherently dangerous animals capable of transmitting disease and causing serious injury or death to human beings;” accordingly, it is illegal for individuals to possess chimpanzees as pets. Although she apparently intended to keep the chimpanzee as a pet (and as a “service animal” for her diabetes), she failed to mention that on her USDA license application. Instead, she stated that she “may possibly use the chimpanzee in commercials or a documentary film and possibly would take the chimpanzee to schools for the education of young children.” In that case, state officials ordered the owner to remove the ape from the state before any USDA license was issued. However, in other cases, license applicants and licensees have actually admitted that they do not exhibit animals or have indicated their intent to circumvent local laws, and APHIS has still issued or renewed their licenses. One licensee applied to have his license changed from a Class A breeder’s license to an exhibitor’s license because, according to his application, his county had just passed an ordinance prohibiting the private possession of his exotic animals, but USDA licensed exhibitors were exempt from the ban. APHIS issued him an exhibitor’s license, despite that statement on his application and the fact that he had no proof of ever exhibiting his animals.
Although not as common, some private ape owners become licensed breeders (Class A license) to circumvent state and local pet bans. Most apes are also regulated under the Federal Endangered Species Act and any person that intends to breed those animals must be registered with the U.S. Fish and Wildlife Service (FWS) as a “captive-bred wildlife” breeder. Interestingly, APHIS does not require an applicant for a Class A license who intends to breed endangered animals to be registered with FWS as a pre-requisite to licensure. Such a requirement would provide an additional screening mechanism to weed out unscrupulous pet owners. In one classic case, a couple in Connecticut kept an endangered exotic pet for two years in violation of a state law prohibiting the possession of such pets. After the Connecticut Department of Environmental Protection began formal proceedings to have the animal removed from the couple’s home, they applied for a Class A breeder’s license. APHIS issued the license despite the fact that the couple had neither applied, nor been approved by FWS, for the captive-bred wildlife registration. Without that registration, they could not have legally bred the endangered animal anyway. More than a month after they received the USDA license, the couple applied to FWS for the captive-bred wildlife registration. FWS denied their application because of the animal’s “doubtful genetic value” (he had epilepsy), and because the couple lacked the requisite experience in breeding and raising such animals. Had the USDA required its applicants to obtain FWS captive-bred wildlife registration as a prerequisite to licensure (for breeding endangered animals), the couple would not have been able to obtain the USDA Class A license. However, since they had it, they used the license as a basis to sue the Connecticut Department of Environmental Protection to prevent the agency from relocating their pet. The couple argued that the State could not prohibit an activity (i.e. keeping an exotic endangered pet) that the federal government had authorized by way of the Class A license. Although they did not prevail in the lawsuit, they did manage to use the license as a means to delay and frustrate the legitimate enforcement activities of the State.
In 2010 USDA’s OIG followed up on its 1996 audit that revealed the high rates of pet ownership among licensed exhibitors. Once again, OIG investigators found that more than one-third of the exhibitors they visited had no proof of exhibiting animals in the past year. Moreover, those licensees “appeared to maintain their exotic animals as pets,” with some exhibitors openly admitting it. APHIS is aware that this practice continues, but it claims that it cannot control the problem because its own regulations do not expressly authorize the agency to require proof of exhibition. In response to this long-standing predicament, OIG recommended that the agency amend its own regulations. To date, this has not been done; however, the agency has expressed an intention to “implement the action needed to establish this requirement and/or policy.”
B. Activities Requiring USDA Registration: Scientific Research and Commercial Transport of Apes
Among the facilities that APHIS regulates, there is a general disparity in the method and scope of agency oversight between: (1) those that are licensed to utilize apes for commercial trade or exhibition (“licensees”); and (2) those that are registered to utilize apes for scientific research or to commercially transport such animals. While all regulated facilities are obliged to comply with the general standards of care in Section IV below, the former group is subject to more direct regulatory oversight and control than the latter. This incongruity is largely the result of Congress’s efforts to balance competing commercial and animal welfare interests in enacting the AWA. The Act places the welfare of apes above any conflicting commercial interests of dealers or exhibitors; however, the same is not true for research facilities. While the AWA seeks to ensure that apes intended for use in research facilities are afforded minimum standards of care and treatment, Congress did not intend for this goal to interfere with their use as experimental subjects or to hinder “progress in medical research.” Accordingly, research facilities are afforded a greater level of autonomy than licensed dealers and exhibitors. Not only is the process of becoming registered much simpler than licensure, but APHIS has a lesser degree of administrative authority over the use and treatment of apes by registered facilities.
The process for becoming registered involves little more than filing a registration form with APHIS, and agreeing to comply with applicable rules and regulations. Unlike the screening process for licensure, registrants are not subject to a pre-registration inspection of their premises, facilities, animals, vehicles, or equipment. APHIS has no authority to deny the registration of an individual or facility for a failure to demonstrate that their apes will be maintained in accordance with AWA rules. In fact, the agency cannot deny a facility’s registration for any reason. Also, although APHIS can suspend or revoke a USDA license for repeated or egregious violations of the AWA, it does not have the authority to suspend or terminate any facility’s registration for recurrent or wanton AWA violations. In the most basic terms, this means that the agency cannot, under any circumstances, prohibit a registered facility from maintaining or using apes for scientific research or commercial transport. Also, although dealers and exhibitors may be criminally prosecuted for AWA violations, the Act does not provide for criminal prosecution of employees and officials of research institutions that violate the AWA.
i. Scientific Research
All research facilities that maintain and use Great Apes for scientific experiments are subject to some degree of regulation under the AWA. Among the Great Apes, chimpanzees are the most commonly used research subject, with more than 1,000 individuals currently residing in U.S. research laboratories. Most facilities, including local and state-run research institutions, drug firms, universities, and diagnostic laboratories that use apes must register with APHIS; however, federal research facilities are exempt from the registration requirement. Private research facilities that sell or trade apes must also be licensed as dealers. All research facilities are expected to maintain their apes pursuant to the general standards of care in Section 4. While the AWA does not directly restrict, nor does it authorize APHIS to limit, the types of experiments that can be conducted on apes, or the treatment of apes during those experiments, research facilities are supposed to adhere to the following standards governing the humane use of animals in experiments:
1. Prior to conducting any “painful procedures” on apes, a researcher must “consider alternatives” to those experiments.
2. When pain and distress accompany experimental procedures, they should be minimized through the appropriate use of anesthesia, pain reducing medications, or euthanasia if such use does not interfere with the purpose of the experiments.
3. Apes that are rendered immobile with paralytics (e.g. muscle relaxers) for a procedure must be given anesthesia.
4. When experimental procedures will result in severe or chronic pain that cannot be relieved, the ape should be euthanized during or after the procedure.
5. If an ape will be allowed to recover from a surgery, the procedure must be performed with sterile instruments under aseptic conditions (i.e. surgical masks and gloves).
6. Apes should not be used in more than one “major operative procedure,” except in cases of “scientific necessity,” or in other “special circumstances.”
If compliance with either the general requirements in Section 4 or the aforementioned standards would interfere with the purpose of a research project, researchers may legally deviate from those rules to the extent necessary for their experiments. All facilities are required to develop a research protocol for each proposed experiment involving apes that includes either: (1) express assurances that the research project will adhere to the aforementioned standards; or (2) a description of the exceptions that are necessary for the experiment.
The oversight of regulated research facilities is accomplished through various internal and external channels that are designed to “preserve” and “respect” the “independence of medical research.” First, each registered research facility must establish its own Institutional Animal Care and Use Committee (IACUC), which provides internal oversight by reviewing research protocols and conducting inspections of the facilities. Also, each facility must submit an annual report to APHIS that: (1) provides assurances that the aforementioned standards are being met, or justification for why they are not; and (2) confirms that “professionally acceptable standards governing the care, treatment, and use of animals are being followed by the research facility during actual research or experimentation.” Finally, APHIS inspectors annually inspect each research facility to determine whether it is in compliance with the AWA.
a. Internal Oversight of Research Facilities
Generally, APHIS defers to each facility’s attending veterinarian and Institutional Animal Care and Use Committee (IACUC) to ensure that apes that are maintained and used in experiments are treated in accordance with AWA rules. Deviations from the agency’s regulations and standards governing the use of apes are allowed when an IACUC determines that such deviations are appropriate for the purposes of a scientific research project. For example, although the regulations prohibit continuous long-term use of a restraint device on an ape, it is allowed if a facility’s veterinarian deems it necessary or if an IACUC approves a particular experiment that calls for such restraint. Likewise, it is generally mandatory to dispense pain-relieving medications to apes that are used in painful procedures, but the requirement is waived if an IACUC approves an experiment that requires the withholding of such medications.
Institutional Animal Care and Use Committees (IACUCs) are internal oversight committees created by each research facility, to “represent society’s concerns regarding the welfare of animal subjects used at such facility.” Each IACUC is composed of at least three members, generally facility employees, which are appointed by the facility’s chief executive officer. Each IACUC must include a veterinarian that is responsible for the facility’s research animals and one person that is not personally affiliated with (or related to anyone affiliated with) the research facility. The primary functions of IACUCs are to: (1) review research proposals to ensure that the principal investigator considered alternatives to painful experiments and that any deviation from APHIS regulations or standards is justified; (2) review and investigate public or internal allegations of AWA violations; and (3) inspect research facilities to ensure compliance with the AWA and the terms of approved research proposals. At least twice a year, each IACUC must inspect its animal research facility, evaluate the condition of the apes, and review the facility’s program for the care and use of apes, as well any practices that inflict pain on those animals. If an IACUC identifies any violations of the general AWA rules (see Section IV, below) or unapproved deviations from the minimum standards of care for research animals, it must notify the facility and provide a reasonable opportunity for the facility to correct those conditions. If a Committee finds inconsistencies between approved research proposals and the actual experiments, it may suspend those experiments. Following each inspection, the IACUC must submit an inspection report to the facility that includes the Committee’s findings, any notification to the facility regarding deficiencies, and any corrections made thereafter. The inspection reports are not sent to APHIS; rather, they are maintained in-house by each research facility for three years and during that time may be inspected by APHIS and any Federal funding agency. If, after notice and an opportunity for correction, a research facility fails to improve substandard or non-compliant conditions identified by an IACUC, the committee must notify APHIS and any Federal funding agencies.
In addition to providing for formal internal oversight by IACUCs, USDA regulations mandate that all personnel involved with caring for, or experimenting on, apes be trained in “humane” methods of animal maintenance and experimentation. Also, all employees must be taught about the “concept, availability, and use of research or testing methods that limit the use of animals or minimize animal distress.” Most importantly, each facility is required to instruct all employees on methods for reporting AWA violations and deficiencies in animal care standards. Any employee or IACUC member that reports such violations is legally protected from retaliation by a facility.
b. Agency Oversight of Research Facilities
Although the AWA provides for internal oversight of registered research facilities by IACUCs, it does not contain any statutory mechanism for ensuring that IACUCs perform effectively or in good faith. As a result, agency oversight of research facilities is vital in ensuring that the apes maintained by those facilities are maintained pursuant to the Act’s minimum standards of care. Each registered facility must submit an annual report to APHIS that discloses the number of apes used in experiments or maintained by the facility. In those reports, the apes are inventoried in different columns based upon the pain-level of the experiments that they were involved in, and whether they received pain-relieving drugs. The report must include assurances that the facility is adhering to the minimum standards of care and other regulations. Also, all IACUC-approved exceptions to AWA rules must be summarized along with the number and species of apes that were affected by those exceptions. APHIS has dedicated Veterinary Medical Officers (VMOs) who conduct inspections of research facilities annually. During each inspection, VMO’s examine the animals and the facility buildings, including animal holding areas, hospital and surgical areas, and researchers’ labs. They also review the facility’s records, including IACUC meeting minutes and inspection reports, animal records, research experiment protocols, and animal maintenance logs.
Despite the additional measure of supervision and guidance provided by IACUCs, APHIS issues a considerable number of citations to research facilities annually. In 2002, 463 of the 1,030 registered facilities were in violation of the AWA. Two years later, that number increased to 600 of 1,176. If a violation is particularly egregious, the Secretary may issue a cease and desist order, and APHIS officials may seize an ape that is suffering, but only if he is no longer needed by the research facility for its research. Federal agencies are required to suspend or revoke support for federally-funded research projects that fail to comply with the aforementioned standards, but only when a facility has received appropriate notice of non-compliance and an opportunity to correct any deficiencies.
ii. Commercial Transport
The commercial transport of apes was the last type of activity to come under AWA regulation, which occurred as a result of the 1976 amendments. At that time, there was a thriving animal shipment industry which was largely monitored by volunteer organizations. The mistreatment of animals in transit by carriers (airlines, railroads, trucking companies, etc.) and intermediate handlers (express companies, freight forwarders, etc.) had become a “persistent problem,” due to the lack of meaningful government oversight. As a result of those amendments, carriers and intermediate handlers that routinely transport animals must be registered with APHIS and must comply with all AWA rules and regulations governing the humane transport of apes. Pursuant to USDA regulations, it is illegal for a carrier or intermediate handler to accept an ape for transport unless all of the following requirements are satisfied:
(1) The ape must be delivered to the carrier or intermediate handler in a properly labeled cage or other primary enclosure no more than four hours prior to the scheduled departure, along with:
(a) the name, address, and telephone number of the person that will accept delivery of the animal upon arrival;
(b) written certification that the ape had food and water within four hours prior to delivery to the carrier or handler;
(c) written instructions for the provision of food, water, medications, and other treatment during transit; and
(d) a veterinary certificate stating that the ape had been examined within the past ten days and is free of dangerous infectious diseases and physical abnormalities.
(2) The transport cage must be secure, sturdy, safe (no sharp edges or damage likely to cause injuries), clean, and equipped with proper ventilation and handles, and must comply with all other minimum transport requirements.
(3) The carrier’s or intermediate handler’s animal holding area must meet the minimum temperature requirements, unless a veterinarian certifies that the ape is acclimated to temperatures that are below the minimum acceptable levels.
Upon arrival at the final destination, the carrier or intermediate handler has certain ongoing legal obligations to care for the ape. Within 24 hours he or she must contact the person designated to accept delivery of the ape; if that person cannot be reached, or does not accept the delivery within 48 hours, the ape must be returned or placed with another designated person. In addition to meeting the specific requirements outlined above, all carriers and intermediate handlers are responsible for complying with the general standards of care governing the transport of apes outlined in Section IV, below.
IV. Minimum Standards of Care for Apes Possessed by Regulated Facilities
All regulated facilities are subject to unique rules that dictate how they may use their apes for particular purposes, but the Act also includes a variety of general rules that set minimum standards for the care and maintenance of apes. These standards address the environmental, nutritional, physical and psychological needs of primates in general. Except for minimum cage dimensions, none of the rules are tailored to apes specifically; instead they provide broad guidelines that apply to all 240 different species of primates. Each licensee or registrant that possesses apes is expected to interpret and apply the following standards according to “generally accepted professional and husbandry practices considered appropriate for each species.”
All buildings barns or other structures or areas used to house apes must be constructed and maintained so that they are safe, sanitary, and “structurally sound” for the species that is housed therein. All facilities must have electricity, potable running water, washing facilities, and be equipped with disposal and drainage systems that are adequate to keep the animals dry and physically separated from disease hazards, such as sewage and garbage. Indoor lighting must be uniform throughout the facility and sufficient to allow for cleaning, routine inspections, and observation of the animals. If the apes have outdoor access, they must be enclosed by a sturdy wall or natural barrier; otherwise the “primary enclosure” (e.g. cage) must be fenced and surrounded by another “perimeter” fence that is at least 6 feet high, and is constructed to prevent physical contact between apes and unauthorized humans or other animals. All animals must be provided with a regular daily lighting cycle (whether artificial or natural). All furniture type fixtures must be constructed of materials that can either be sanitized or removed and that are strong enough to ensure the safety of the apes.
All primary enclosures, such as cages, must be safe, structurally sound, free of sharp edges, and secured to prevent accidental opening of the enclosure or physical contact with other animals. They must be constructed in a manner that prevents the apes from injuring themselves and allows them to remain clean and dry. The minimum primary enclosure size for Great Apes weighing more than 55 lbs., is 25.1 square feet, or approximately five feet by five feet of floor space per animal, and 7 feet high. Great Apes that weigh more than 110 pounds must have “an additional volume of space … to allow for normal postural adjustments.” Neither the regulations nor APHIS guidelines specify the actual amount of additional space that a facility must provide to apes over 110 pounds.
B. Safety and Sanitation
All housing facilities and cages must be kept free of debris, waste, odors, pests, insects, parasites, vermin and other animals. All surfaces that come in contact with an animal must be safe (no sharp edges or excessive rust) and constructed of materials that can be cleaned and sanitized, or removed and replaced when they become worn or unsanitary. Excreta and food waste must be removed from indoor primary enclosures (e.g. cages) daily, and removed from beneath those enclosures “as often as necessary” to prevent “excessive accumulation of feces and food waste.” Hard surfaces must be spot cleaned daily and sanitized in accordance with the regulatory requirements. When steam or water is used to clean an enclosure, the ape(s) must be removed first, unless an enclosure is “large enough” so that the ape(s) will not be harmed, wetted, or distressed during the cleaning. All bedding and floor materials that cannot be sanitized, such as dirt, sand, or gravel must be raked and spot cleaned with sufficient regularity to “prevent the accumulation of excreta or disease hazards,” and removed and replaced when “cleaning does not remove odors, diseases, pests, insects, or vermin.” Indoor facilities must have ventilation to “minimize” odors, drafts, ammonia levels, and moisture condensation. Apes of different species cannot be housed together, unless they are compatible and do not pose a risk to the health and safety of one another.
C. Exposure to Extreme Temperatures and the Elements
If apes are housed indoors, the facility must be maintained at a temperature that will “provide for their health and well-being.” Specifically, indoor temperatures may not fall below 45(F) degrees or rise above 85(F) degrees for more than four consecutive hours. Fans, blowers, or air conditioning must be utilized whenever the indoor temperature rises above 85(F) degrees. Apes may be kept in outdoor housing facilities if, according to the attending veterinarian, they can tolerate the range of temperatures and climactic conditions without stress or discomfort. All facilities must provide adequate shelter from sun, rain, snow, wind, cold, and any other weather conditions. Outdoor shelters must be heated to prevent the ambient temperature from falling below 45(F) degrees. All shelters must be large enough to “comfortably” accommodate all the apes that are housed together; and there must be a sufficient number of shelters so that dominate and aggressive animals will not prevent their roommates from accessing sheltered areas.
D. Food and Water
Apes must be fed at least once a day with clean, wholesome food that is “appropriate for the species, size, age, and condition of the animal, and for the conditions in which the nonhuman primate is maintained, according to generally accepted professional and husbandry practices and nutritional standards.” Food must be provided in sufficient quantity to maintain each animal within a healthy weight range. If food is left in a self-feeding station, it must not mold, deteriorate, cake, or become contaminated or wet.  If multiple apes are housed together, each animal must have access to food, and multiple feeding sites must be provided when necessary or required. Potable water must be provided to apes at least twice daily for an hour at a time; this requirement is waived if an IACUC approved scientific research experiment requires water deprivation. Food and water dishes must be kept clean and placed in the cages or enclosures in a manner designed to avoid contamination by animal waste and pests. All dishes must be sanitized every two weeks and before being used to provide food to another ape. Toxic substances, dead animals and animal waste may not be kept in food storage or food preparation areas, including refrigerators and freezers. All food must be refrigerated if necessary, or stored in leak proof containers with tightly fitting lids, and kept “in a manner that prevents contamination and deterioration of its nutritional value.”
E. Physical Environment to Promote Psychological Well-Being
In 1985, Congress passed the Improved Standards for Laboratory Animals Act, which amended the AWA. Those amendments directed the Secretary of Agriculture to develop “minimum requirements ... for a physical environment adequate to promote the psychological well-being of primates.” Because the many species of primates have vastly different social, environmental and psychological needs, the regulations are quite generalized, and each regulated facility is expected to interpret and apply the requirements according to the particular species at issue. These regulations have been a source of legal and public controversy since their inception. It took six years for the USDA to actually develop the standards, and during that time, the agency considered more than 20,000 public comments on the subject. Clearly a matter of public concern, the final regulations have been the subject of many lawsuits which primarily alleged that “the regulations failed to include the statutorily mandated ‘minimum requirements’ and instead impermissibly delegated promulgation of those standards to the individual research facilities,” dealers, and exhibitors.
The general guidelines are as follows:
(a) Physical Restraints: Restraint devices such as primate chairs, squeeze chutes, and jacket and tether systems, are generally prohibited except where necessary for the health of an ape, or for research experiments. If an ape is kept in a restraint device for more than 12 hours, he must be removed from the restraint for at least one hour a day, unless continuous restraint is necessary for a scientific experiment. Although research facilities may be allowed to restrain apes continuously, this exception does not extend to dealers and exhibitors.
(b) Environmental Enrichment: Primary enclosures must be “enriched” so that apes may engage in their natural behavior. Such enrichment may include objects like perches, swings, and mirrors; activities like manipulation games and varied food items or feeding methods; and interaction with human care givers. In order to effectively fulfill this mandate, facilities need to know the familial, social, reproductive, developmental, nesting, feeding, foraging, migratory, grooming, and sleeping behaviors of apes in the wild. In addition to understanding the different types of behavior for each species of ape that they possess, facilities must also know how to reproduce the variables necessary to facilitate species-typical behaviors for captive apes.
(c) Special Accommodations: The environment of certain apes must be given special attention, including infants, young juveniles, psychologically distressed, aggressive, or sick individuals, isolated apes, and individuals over 110 pounds. According to APHIS guidance documents, these apes must have “additional opportunities” to express species-typical behavior. However, the agency does not quantify “additional” or explain what sort of “opportunities” would suffice.
(d) Social Grouping: Facilities must “address the social needs of nonhuman primates.” The mandate to address the social needs of apes does not amount to a group housing requirement, despite the fact that “social housing is a critical component of psychological well-being.” The Association of Zoos and Aquariums (AZA) recently testified before Congress about the significant impact that group housing has on the psychological well-being of apes. According to the organization, “there are no solitary chimpanzees in AZA zoos as the SSP [Species Survival Plan] feels social housing is of the utmost importance. As of 2008, the median group size for chimpanzees in AZA facilities was 6.” Although “they can be harmed by a lack of social interaction,” USDA regulations allow apes to be isolated if they are aggressive, debilitated, diseased, or incompatible with other resident animals. However, individually housed apes should be able to see and hear other individuals of their species or other compatible animals unless it would endanger their health, safety, or well-being. In a 1999 report drafted by the agency, APHIS inspectors noted that they had found “too many singly housed primates.” In many instances, it is easier for handlers to individually house apes in order to avoid the careful planning, observation, and safety measures involved with establishing and maintaining compatible groups. Inexperienced or indifferent handlers that do not address the social intricacies involved with establishing social groups and adding new members may not be prepared for, or inclined to address, the resulting problems, such as physical attacks and competition for food. Also, according to the Institute for Laboratory Animal Research, many primates are individually housed in research facilities because the facilities are not inclined to provide enclosures that meet the minimum space requirements for group housing. However, because social isolation deprives apes of the ability to engage in many vital behaviors, such as grooming, play, sleeping huddles, sexual activity, and competition, it is critical for APHIS to ensure that apes are not isolated for the convenience of handlers or to avoid minimum space requirements. Under the current regulations, it is unclear whether, or to what extent, APHIS can ensure that such animals are isolated out of necessity rather than convenience.
In order to implement the guidelines governing the psychological well-being of apes, each dealer, exhibitor, and research facility must develop, document, and follow an environmental enrichment plan. The plan must be “in accordance with the currently accepted professional standards as cited in appropriate professional journals or reference guides, and as directed by the attending veterinarian.” Any individual ape may be temporarily or permanently excluded from participation in an environmental enhancement plan for his or her own health or welfare or for scientific research purposes. The plans are not submitted to APHIS, but must be made available to the agency for inspection upon request.
These requirements have presented a challenge to regulated facilities and APHIS inspectors in terms of compliance and enforcement. Between 1996 and 1998, APHIS formally surveyed and interviewed its inspectors to gain an understanding of the problems that they had encountered in enforcing the regulations. The overriding theme was that there is no objective scale for measuring compliance, which presents an obvious enforcement challenge. According to APHIS inspectors, the guidelines are not specific enough for them to actually enforce, particularly because there is no “minimum quality and quantity of enrichment” that is required. As a result, “too many enhancement programs consisted of only one or two types of enrichment, such as feeding of treats or provision with a simple rubber toy, in an otherwise barren, stimulus-poor environment.” Also, the regulations do not require facilities to modify the enrichment devices regularly or even occasionally, but many primates become accustomed to the objects in their cages and cease to derive psychological stimulation from those items. So, while a facility would technically be in compliance with the regulations if they put one or two objects in an ape’s cage and never rotated those items, the objects “contribute little to well-being.” APHIS inspectors expressed concern that such enrichment plans were clearly “not adequate to promote psychological well-being,” but they felt that the only legally enforceable requirement was the existence of a written enrichment plan, no matter how meager. According to APHIS’s own findings, “[n]o one, including inspectors, would have any basis for criticism, until there is proof of ‘poor performance.’ Unfortunately there is no agreement on what ‘poor performance’ looks like.”
Because the inspectors cannot determine whether a facility is in compliance with the minimum requirements by assessing the content of enrichment plans, the only other way to determine compliance is by evaluating the psychological well-being of the apes to determine whether the enrichment plans are effective. APHIS has identified several factors that make this approach to enforcement unfeasible. First, there were no standards for assessing psychological well-being of apes prior to the enactment of the regulations in 1991, and so no way to assess whether an enrichment plan has actually improved the psychological well-being of those animals since then. If inspectors cannot utilize a comparative approach to measure relative improvements in psychological well-being, the alternative is to utilize a more basic approach: if a facility’s apes are psychologically well, then the enrichment plan is working, and so the facility is in compliance with the requirements. If, on the other hand, the apes are not psychologically well, then the enrichment plan is deficient, and the facility is not in compliance.
Assessing the psychological health of primates is a subjective process involving long-term observation to evaluate indicators such as: how they cope with variations in their social and physical environments; their ability and motivation to engage in species-typical behavior; their reproductive and parenting skills; and the balance and stability of individual temperaments. Yet APHIS inspectors have access to each animal or each group of animals for a few hours at a time, and usually once a year. Many psychologically unhealthy animals will not necessarily or consistently display obvious signs of distress, like chronic or excessive fear, grimacing, withdrawal, altered breathing, distress vocalizations, anorexia, or unusual postures, and may appear physically healthy. Certainly, the most psychologically damaged animals show signs of “chronic distress as manifested in maladaptive or pathological behavior,” such as self-mutilation, but those signs may be misinterpreted or overlooked during a short inspection. Furthermore, as the agency observed, “waiting to improve a minimally enriched environment until a primate starts showing signs of psychological distress was not the intent of the Animal Welfare Act.” On the other hand, it is not always accurate to conclude that an ape with physical symptoms of psychological distress or illness is suffering due to an insufficient physical environment. Such manifestations may be the result of prior psychological damage and do not necessarily reflect the adequacy of his or her present environment.
Indeed, the inherent difficulties of interpreting and enforcing these regulations have been a source of public, administrative, and legal controversy since their enactment. In 2000, after nearly a decade of litigation challenging the adequacy of the regulations, the Circuit Court settled the matter in favor of the agency, stating that although the requirements “may be minimal” and “difficult to enforce,” they are nonetheless “reasonable.” Despite having defended the adequacy of its regulations in court, APHIS took the unusual position of concurrently denouncing the adequacy of its regulations. In its Final Report on Environmental Enhancement to Promote the Psychological Well-Being of Nonhuman Primates, the agency stated that, “[i]n order for minimum standards to be enforceable, the standards must have definition and structure. It must be clear to all facilities when violations occur and enforcement action is necessary.” Accordingly, APHIS developed a detailed interpretive policy that set forth critical and mandatory elements of environmental enrichment plans, in order to “assist in the fair application and enforcement of the environmental enrichment standard.” In 1999, the agency published the draft policy in the Federal Register, and invited the submission of public comments prior to the publication and implementation of the final interpretive policy. Several years passed until an agency official announced that APHIS would not issue a final interpretive policy after all.
Apes must be handled in a way that does not cause trauma, stress, physical harm, or unnecessary discomfort. It is illegal to utilize physical abuse or food and water deprivation as a means to train the animals, force submission, or for any other purpose. However, research facilities may withhold food and water “short-term” if it is necessary for a scientific experiment, as long as the apes are monitored throughout the course of deprivation. Likewise, exhibitors can withhold food and water “short-term,” as long as the apes still get their daily ration of food and water.
Facilities with Great Apes must have a sufficient number of trained employees to adequately care for the animals. Employees must be supervised by an individual who “has the knowledge, background, and experience in proper husbandry and care of nonhuman primates to supervise others.”
H. Veterinary Care
All facilities must have an “attending veterinarian,” though the veterinarian does not need to be a full-time employee of the facility. Any licensed facilities that do not have a full-time veterinarian and all research facilities are required to maintain a written Program of Veterinary Care (PVC), that addresses the availability of appropriate facilities, services, and diagnostic and preventative care, as well as the specific dietary and medical needs of all apes in the facility. An attending veterinarian must visit the facility “often enough to provide adequate oversight of the facility’s care and use of the animals but no less than annually.” Although the AWA and APHIS regulations are silent on the issue of medical records, the agency has a written policy requiring all facilities to maintain detailed health records on their apes, which must be maintained for at least one year after each animal’s transfer or death.
In interpreting AWA’s mandate to provide adequate veterinary care to all apes, APHIS issued a written policy in 2006 prohibiting the removal or reduction of canine teeth in apes. The agency noted that this practice had emerged as a means to minimize the dangers presented during human interaction with apes. However, because such procedures “are not innocuous and can cause ongoing pain, discomfort, or other pathological conditions,” the agency would no longer allow the routine performance of such procedures.
The rules governing the humane transport of Great Apes apply to any person that is subject to the AWA regulations, including: dealers, exhibitors, scientific research facilities, carriers, and intermediate handlers. Persons that are not regulated under the AWA, such as private pet owners, are not required to comply with these rules. In addition, the rules apply only when an ape is transported by a regulated person in interstate or foreign “commerce,” or in connection with a transaction involving such commerce. All apes that are transported must be examined by a veterinarian within 10 days of departure and must be accompanied by a certificate of health during shipment.
1. Minimum Standards for Transport Cages, Crates, or Other Enclosures
All transport cages must be: (A) secure enough to contain an ape comfortably, with animal proof doors; (B) sturdy enough to withstand the rigors of transport, with no major damage; (C) safely constructed with nontoxic materials and without sharp edges, wide slats, openings, or other features that are likely to cause injury; (D) designed to prevent physical contact between an ape and all handlers, but to allow easy and quick removal of the animal in an emergency; (E) clean and lined with safe, nontoxic, and absorbent litter; (F) equipped with proper ventilation that meets strict specifications, handles, and attached food dishes; (G) large enough so that each ape can turn around freely and sit up without hitting his or her head on the top of the cage, except that a larger ape may be more restricted for the safety of the animal, handlers, or other humans; (H) properly labeled in English with the words “Wild Animals” or “Live Animals,” with arrows or other markings to indicate the correct upright position of the cage. All shipping documents, and feeding, medication, and special care instructions must be securely attached to the outside of the transport cage.
2. Minimum Standards for Transport Vehicles
Whether an ape is transported in a motor vehicle, train, airplane or boat, the animal cargo space must be designed and maintained to ensure the health and safety of the animal. Specifically, the animal cargo space must be clean and free of all materials, devices, and substances that may harm the ape or cause inhumane conditions. The air within cargo spaces must be sufficiently exhaust-free to allow for normal breathing and maintained at a temperature that is either: (1) “safe” for the ape, according to “generally accepted professional and husbandry practices” (air travel requirement); or (2) between 45(F) degrees and 85(F) degrees (ground or water travel requirement). Also, all cargo spaces must allow for easy access to the ape in an emergency.
3. Handling During Transit
Transport cages containing apes must be handled with care to avoid causing physical harm or distress to the animals. Activities that fall below the requisite standard of care include: tossing, dropping, needlessly tilting, or stacking cages in a manner that might reasonably cause them to fall; placing transport cages on unattended conveyor belts, elevated conveyor belts, or conveyor ramps in baggage claim areas; and failing to carry or position transport cages so that the arrows on the outside of the cage or crate are facing up. Whenever apes are moved, transferred, loaded, or unloaded, they must be protected from exposure to extreme temperatures (lasting for more than 45 minutes), direct sunlight, rain, and snow. Apes must not be removed from their transport cages during transit except by experienced and authorized handlers for the purpose of transferring animals between transport cages or other approved enclosures, unless it is necessary for the health or well-being of the animal.
4. Minimum Standards of Care During Transit
All adult apes must be offered food (that meets the minimum standards described in Section 4(d), above) at least once every 24 hours; apes under one year of age must have access to food every 12 hours. All apes must be offered potable water at least once every 12 hours. Apes must be observed at least once every four hours (or in the case of air transport, whenever the animal cargo space is accessible) to check for dangerous conditions, such as extreme temperatures, and signs of physical distress. If an ape is ill, injured, or in physical distress, he or she must receive veterinary care at the earliest possible opportunity.
5. Animal Holding Areas of Terminal Facilities
Apes may be stored in animal holding areas for up to 48 hours after arrival, as long as they are kept separate from inanimate cargo and away from all other animals. Such areas must be cleaned and sanitized, “as often as necessary” to minimize “vermin” infestation and disease hazards. Also, provisions must be made to ensure that apes in holding areas are not exposed to insects, parasites, extreme temperatures, direct sunlight, rain, or snow.
V. The Effect of the Animal Welfare Act on State and Local Laws
Although the AWA establishes minimum standards of care for certain captive Great Apes, state and local governments may have additional, more restrictive, animal welfare regulations and bans on the possession of Great Apes. The AWA does not in any way discourage or prohibit more stringent state or local regulation of Great Apes. In fact, all AWA licensees are required to comply with all local and state laws as a condition of federal licensure. In a 1995 case arising out of Indiana, USDA licensed Class B dealers that owned a gibbon and several other exotic animals were cited by the county for violating a local zoning ordinance prohibiting the possession of those animals in residential areas. The couple challenged the ordinance arguing that their USDA license amounted to a “federally protected right to possess wild and exotic animals,” and the county could not infringe upon that right. The Indiana Court of Appeals held that the goals of the AWA are intended to be realized through state and local participation, which appropriately includes outright bans on the possession of regulated animals, including apes.
In 1896, Professor Richard L. Garner, an American anthropologist and early primatologist, lamented of our treatment of captive apes that, “[w]e know so little and assume so much concerning them that we often violate the very laws under which they live.” Although he published several volumes on Great Apes throughout his life, that single sentence epitomizes the history of captive apes in the U.S. At the time, Garner was the only American to have studied apes in their natural habitat; otherwise, the limited available scientific information had been gleaned from studying captive apes. As a result, no one understood the true nature of the animals, and early efforts to maintain apes in captivity failed for a lack of even the most basic insight into their social, nutritional, physical, psychological, and environmental needs. Consider the following excerpt about gorillas published in 1915 by the New York Zoological Society:
The objectionable features of the gorilla are its much too savage habits, and its aversion to food and life in captivity. It is not an animal of philosophic mind, nor is it given to intelligent reasoning from cause to effect. It reminds one of children who would refuse to taste a new kind of food because they know in advance that they won’t like it! And what can we do with a wild animal that is not amenable to the pangs of hunger, and would rather die than yield? The first gorilla that came to us, in 1912, was on arrival in a low state physically, from food-refusal, and its food preferences and aversions were at once the rage and the despair of its keepers….By the time we had secured a small lot of spoiled plantains from New Orleans and two dozen good ones from Cuba, the gorilla was dead; which as a purely logical proposition, it deserved to be for its obstinacy. It took us nine months to recover from the shock of our first gorilla. Then we formulated a plan of campaign by which we hoped to secure at least one gorilla that should reach us not only alive, but in good health. We believed that if we could secure a specimen in that state we could make it live for at least two or three years….Dinah, a lovely female gorilla three years of age, landed in New York on August 21, 1914….For a wonder of wonders, she was (and still is) cheerful, good-natured and affectionate, instead of being like other captive gorillas, morose, savage, and resentful….Dinah’s health remained excellent – until November 15. Then it was noticed that in a very strange manner she kept all her fingers constantly closed….By November 25, it had to be acknowledged that Dinah’s appetite was failing somewhat, and that the muscles of her legs and arms were not up to the mark of robust health. The failing of certain leg and arm muscles to perform their functions looked like a locomotor ataxia, or infantile paralysis [polio]….There is not the slightest reason to hope that an adult gorilla, either male or female, ever will be seen living in a zoological park or garden. Large specimens cannot be caught alive in condition to long survive. The savage and implacable nature of the animal is against it. Only young specimens, usually under two years of age, can be captured and civilized; and even when a specimen has been so taken and settled, it is due to die overnight, and from no understandable cause….There is no excuse whatever for Dinah’s locomotor ataxia; and therefore we hope that with the aid of the electrical treatment and massage that she is receiving she will eventually recover. –New York Zoological Society, 1915
Though this was written only a century ago, the work reflects a primitive level of scientific, biological, behavioral, medical, and psychological understanding of apes. This photo of the ailing Dinah was not staged for entertainment purposes; rather it was taken during the course of her treatment at the Bronx Zoo. In addition to the “electrical treatment” and massage therapy, she was carefully bundled up and “wheeled in the open air for several hours each day” by her volunteer nurse (in the photo) in an effort to improve her declining physical state. There were no veterinarians that could treat Dinah, so the zoo hired a Harvard educated physician and pathology researcher from the Rockefeller Institute to diagnose and treat her. Despite the irrefutable competence of her physician in the treatment of human infectious diseases, and her well-documented care at the Bronx Zoo, Dinah died 11 months after arriving in New York from malnutrition. She had survived at least 10 months longer than any other captive gorilla in the U.S. had before. The best scientific information and medical care available at the time could not meet even the most basic physical needs of captive apes. It had been two decades since Garner had observed that “[w]e know so little and assume so much concerning them that we often violate the very laws under which they live.” Yet without even a basic understanding of the laws under which apes live, there was no way to ensure the physical or psychological well-being of those animals in captivity.
For the next five decades, the scientific community learned a great deal about the physical needs of captive apes. By 1966, when Congress enacted the Animal Welfare Act, there was a sufficient consensus about the physical needs of apes to justify the establishment of certain legally enforceable standards of care. In its infancy, the Act offered limited protection to a small percentage of all captive apes in the U.S., namely apes that were utilized by research facilities that also maintained dogs and cats. It has been nearly five decades since the enactment of the AWA, and the scientific community has learned a great deal more about apes, not only in terms of their physical needs, but also their social and psychological needs. As the knowledge of apes has increased, so too has the legal protection of those animals. Since 1966, Congress has repeatedly expanded the scope of the Animal Welfare Act to provide greater levels of protection to captive Great Apes. Today, the Act protects all apes that are transported and used for commercial trade, exhibition, and scientific research. This covers almost all apes in captivity in the U.S., except those kept as pets. In addition to addressing the physical well-being of apes, as the earlier versions of the AWA did, the Act now includes minimum standards of care to provide for the social and psychological needs of those animals. While critics may be inclined to admonish the limitations of the Act and USDA regulations in terms of scope, specificity, and enforcement, it is important to bear in mind the significance of the AWA as the first federal law in U.S. history to offer protection to captive apes. One of the most impressive features of the law is its fluidity; since its inception, nearly half a century ago, it has continued to evolve to reflect our increased understanding of Great Apes. Moving forward, the scientific community will continue to refine and expand our knowledge about apes and their social, physical, psychological, and environmental needs in captivity. There is no reason to doubt that the legal community will likewise continue to refine and expand the AWA to meet those needs.
 H.R. Rep. No. 91-1651 (1970); 7 U.S.C.A. § 2131 et seq.; Specifically, the Act protects any live or dead dog, cat, nonhuman primate, guinea pig, hamster, rabbit, or any other warm-blooded animal, which is being used, or is intended for use for research, teaching, testing, experimentation, or exhibition purposes, or as a pet. 9 C.F.R § 1.1.
 H.R. Rep. No. 91-1651 (1970) (quoting W.D. Hoard, 1885).
 Research facilities that exclusively maintained and used apes and/or any other animals besides dogs and cats were not required to register with APHIS and were not subject to regulation under the original law. P.L. 89-544 (1966).
 The Laboratory Animal Welfare Act of August 24, 1966 (Pub. L. No. 89-544) was amended by: the Animal Welfare Act of December 24, 1970 (Pub. L. No. 91-579); the Animal Welfare Act of April 22, 1976 (Pub. L. No. 94-279); the Food Security Act of December 23, 1985 (Pub. L. No. 99-198); the Food, Agriculture, Conservation, and Trade Act of November 28, 1990 (Pub. L. No. 101-624); the Farm Security and Rural Investment Act of May 13, 2002 (Pub. L. No. 107-171); the Food, Conservation, and Energy Act of May 22, 2008 (Pub. L. No. 110-234); and the Food, Conservation, and Energy Act of June 18, 2008 (Pub. L. No. 110-246).
 The AWA authorizes the Secretary of the USDA to promulgate such rules, regulations, and orders as he or she deems necessary to effectuate the purposes of the AWA. 7 U.S.C.A. § 2151.
 The term “handling” means “petting, feeding, watering, cleaning, manipulating, loading, crating, shifting, transferring, immobilizing, restraining, treating, training, working and moving, or any similar activity with respect to any animal.” 9 C.F.R § 1.1.
 Office of Inspector General, U.S. Dept. of Agriculture, Animal and Plant Health Inspection Service Animal Care Program Inspections of Problematic Dealers, 2010 Audit Report 33002-4-SF, available at http://www.usda.gov/oig/webdocs/33002-4-SF.pdf.
 Brenda Sandburg, Monkey Business: Activists Contend That California Animal Trainer Uses Fear and Abuse to Get His Chimps to Perform, American Lawyer Vol. 28, No.10 (Oct. 2006).
 Animal Legal Defense Fund, et al. v. Yost, 2006 WL 4552933 (C.D.Cal. 2006) (Verdict and settlement summary).
 PETA v. Bobby Berosini, Ltd., 895 P2d 1269.
 7 U.S.C.A. § 2136; The term “carrier” means the operator of any airline, railroad, motor carrier, shipping line, or other enterprise, which is engaged in the business of transporting any animals for hire. 7 U.S.C.A. § 2132; The term “intermediate handler” means any person including a department, agency, or instrumentality of the United States or of any State or local government (other than a dealer, research facility, exhibitor, any person excluded from the definition of a dealer, research facility, or exhibitor, an operator of an auction sale, or a carrier) who is engaged in any business in which he receives custody of animals in connection with their transportation in commerce. Id.
 “Regulated facilities” are dealers, exhibitors, intermediate handlers, carriers, research facilities and operators of auction sales. 7 U.S.C.A. § 2146(a).
 See e.g., Volpe Vito, Inc. v. U.S. Dept. of Agriculture, 172 F. 3d 51 (6th Cir. 1999) (Licensed exhibitor that displayed chimpanzees and other exotic animals for six years under chronically substandard conditions appealed the imposition of a $26,000 fine and the revocation of his license because he eventually came into compliance with the AWA, although after the formal complaint was filed in his case. The Circuit Court held that “[s]ubsequent compliance, while laudable, does not absolve 51 prior violations.).
 APHIS regulations allow for the confiscation of a suffering animal if: (1)(a) a regulated facility cannot be located; or (b) an agency official is unable to notify a facility of the condition of the animal and give the facility the opportunity to voluntarily alleviate the animal’s suffering or distress; and (2) temporary on-site care of a suffering animal by an agency official would not correct the condition of the animal. 9 C.F.R § 2.38(e); 9 C.F.R § 2.129; See also, Animal and Plant Health Inspection Service, U.S. Dept. of Ag., Animal Care Resource Guide Policy #8 (May 8, 2001), available at http://www.aphis.usda.gov/animal_welfare/downloads/policy/policy8.pdf (last visited Nov. 21, 2010) (guidelines for the confiscation of animals).
 According to a 2010 Office of Inspector General (OIG) audit, APHIS has demonstrated a tendency to take little or no enforcement action against violators, because the agency believes that compliance is better achieved through education and cooperation. In evaluating the effect of the agency’s approach to enforcement, OIG reviewed the agency’s inspections of licensed dealers between 2006-2008. During that period, APHIS inspected 8,289 licensed dealers; 5,261 (65%) of those licensees were in violation of the AWA. Of the 4,250 violators that were re-inspected, nearly half repeatedly violated the AWA. Even in dealing with repeat offenders, APHIS took no remedial action 52% of the time. Office of Inspector General, U.S. Dept. of Agriculture, Animal and Plant Health Inspection Service Animal Care Program Inspections of Problematic Dealers, 2010 Audit Report 33002-4-SF, available at http://www.usda.gov/oig/webdocs/33002-4-SF.pdf.
 Katharine M. Swanson, Carte Blanche for Cruelty: The Non-Enforcement of the Animal Welfare Act, 35 U. Mich. J.L. Reform 937, 956-57 (2002).
 Licenses are issues to specific persons for specific premises and are not transferable, nor do they remain valid at a different location. 9 C.F.R § 2.5.
 7 U.S.C.A. § 2153; 9 C.F.R § 2.1; The application fee is $10. 9 C.F.R § 2.1(b); The license fee varies, depending upon the type of license and other variables, such as the gross profit from sales of apes (dealers) or the number of apes and other regulated animals possessed by the licensee (exhibitor). 9 C.F.R § 2.6.
 9 C.F.R § 2.1(b); 9 C.F.R § 2.6; But see, Longhi v. Animal & Plant Health Inspection Service, 165 F. 3d 1057 (6th Cir. 1998) (Decision setting aside USDA’s decision to deny a Class A license to a corporation that was owned by a woman who also owned another corporation that held a Class B license; USDA’s rationale for denying the license application was that the effect of granting the license would be to allow the same person to hold two different licenses, in violation of USDA regulations. According to the agency, “if an individual has two dealer licenses, one under her own name and another as a principal in a legal entity such as a partnership, that person could easily evade and frustrate APHIS' enforcement efforts [by moving animals from one facility to another].” The Court of Appeals held that a corporation is a separate and distinct “person” from the person or person’s holding stock in the company, and as such, the woman who owned both companies was not considered the licensee in either case, rather her respective companies are the separate licensees and as such do not run afoul of the prohibition on one person holding two licenses.).
 If an applicant fails the first inspection, he will have two more opportunities for inspections. If he fails all three inspections, his application will be denied and he will forfeit the $10 application fee. He cannot reapply for licensure for 6 months. 9 C.F.R § 2.3.
 In enumerating the disqualifying criteria, the regulations also clarify that a person is ineligible for licensure whether he is applying for a license or already has one. In the event that a licensee becomes ineligible for licensure, his license may be terminated at any time. 9 C.F.R § 2.12.
 9 C.F.R § 2.11. Although the USDA regulation prohibits the issuance of a license to any person that meets any of the disqualifying criteria, it also authorizes a disqualified applicant to reapply for licensure a year after being denied. It seems that if the regulation were literally enforced, submitting an application the following year would be a lesson in futility since the disqualifying criteria (except an animal cruelty conviction) that barred licensure initially would continue to disqualify a person from licensure, regardless of the amount of time that has passed.
 See e.g., In re: Amarillo Wildlife Refuge, Inc., a Texas non-profit corporation, AWA Docket No. 07-0077, WL 1957794 (Mar. 24, 2008) (Class C licensed ape and exotic animal exhibitor, Charles Azzopardi, lost his exhibitor’s license after being convicted for selling and transporting endangered animals in violation of the Endangered Species Act).
 As used in the AWA and APHIS regulations, the term “dealer” means, “any 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 (including unborn animals, organs, limbs, blood, serum, or other parts) for research, teaching, testing, experimentation, exhibition, or for use as a pet.” 9 C.F.R § 1.1.
 In defining a “dealer,” the AWA refers to any “person,” that conducts certain specified activities. A “person” includes any individual, partnership, firm, joint stock company, corporation, association, trust, estate, or other legal entity. 7 U.S.C.A. § 2132.
 7 U.S.C.A. § 2133; 7 U.S.C.A. § 2134; AWA regulations use the general term “commerce” to describe regulated transactions. “Commerce” means trade, traffic, or transportation that occurs between a place in a state and any place outside of that state, whether it be another state, territory, or foreign country, or that occurs between two places in the same state but involves crossing through any place outside of that state; or any transaction which affects such “commerce.” 9 C.F.R § 1.1.
 USDA regulations define a Class A licensee as “a person subject to the licensing requirements … and meeting the definition of a 'dealer' (§ 1.1), and whose business involving animals consists only of animals that are bred and raised on the premises in a closed or stable colony and those animals acquired for the sole purpose of maintaining or enhancing the breeding colony." 9 C.F.R § 1.1.
 USDA regulations define a Class B dealer as "a person subject to the licensing requirements … and meeting the definition of a 'dealer' (§ 1.1), and whose business includes the purchase and/or resale of any animal. This term includes brokers, and operators of an auction sale, as such individuals negotiate or arrange for the purchase, sale, or transport of animals in commerce. A class “B” licensee may also exhibit animals as a minor part of the business.” 9 C.F.R § 1.1; Anyone that transports or delivers regulated animals for profit or compensation by contract or agreement, such as delivering animals to research facilities, must be licensed as a dealer. General carriers, such as airlines, railroads, and trucking companies are regulated under the AWA, but do not need to be licensed. Instead, they must be registered with APHIS.
 See e.g., Knudsen v. C.I.R., 94 T.C.M. (CCH) 461 (2007) (plaintiff breeder sustained a knee injury from chimpanzee attack); Michael Paterniti, Travis the Chimp: The Wild One, N.Y. Times, Dec. 23, 2009 (discussing the 2009 attack by Travis the Chimp that resulted in grievous injuries to a woman who knew Travis well…his human “mother” has to stab her chimpanzee “son” with a butcher knife to try to save the victim’s life, and Travis was eventually fatally shot my law enforcement agents); Christine Byers, Chimp Attack Revives Area Man’s Nightmare, St. Louis Post Dispatch, Feb. 22, 2009 (noting a 1992 attack on a chimp breeder by his chimpanzee named Bo; the breeder lost the tip of his nose in the attack and had surgery to reattach the tip, but it was unsuccessful); http://www.junglefriends.org/trouble.shtml (partial list of primate attacks from 1990-2002).
 See e.g., Captive Primate Safety Act: Hearings on H.R. 2964 Before the Subcomm. On Fisheries, Wildlife, and Oceans of the House Comm. On Natural Resources, 110th Cong. No. 110-63 (2008), available at http://www.gpo.gov/fdsys/pkg/CHRG-110hhrg41235/pdf/CHRG-110hhrg41235.pdf (“nonhuman primates are vectors for diseases, including herpes-B, tuberculosis, and the Ebola virus”); Debora Mackenzie, Dangerous Apes, New Scientist Vol. 177, Issue 2256, Sept. 16, 2000 (discussing discovery of previously unknown herpes virus in chimpanzees and gorillas that may be transmissible to humans); David M. Renquist, D.V.M., M.A. and Robert A. Whitney, Jr., D.V.M., M.S., Zoonoses Acquired From Pet Primates, available at http://pin.primate.wisc.edu/aboutp/pets/zoonoses.html.
 Brenda Sandburg, Monkey Business: Activists Contend That California Animal Trainer Uses Fear and Abuse to Get His Chimps to Perform, American Lawyer Vol. 28, No.10 (Oct. 2006); PETA v. Bobby Berosini, Ltd., 895 P2d 1269; Animal Legal Defense Fund, et al. v. Yost, WL 4552933 (D.C.C.D. 2006).
 House Committee on Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies, Testimony by Project Release and Restitution for Chimpanzees in U.S. Laboratories on the FY 2008 Budget (Mar. 30, 2007), available at http://www.releasechimps.org/pdfs/SenateAppropriationsMarch07.pdf (last visited Nov. 16, 2010).
 Id.; When the ILAR report was published, the National Institutes of Health (NIH) declared a 5-year moratorium on the breeding of chimpanzees that are owned and supported by NIH’s National Center for Research Resources. Thereafter, NIH continued to extend the moratorium until 2007 when the agency announced that because of the high cost of maintaining captive chimpanzees, it would permanently cease breeding chimpanzees for biomedical experiments. http://www.ncrr.nih.gov/comparative_medicine/chimpanzee_management_program/index.asp (last visited Nov. 18, 2010).
 Many dealers offer apes in Animal Finders Guide, a trade publication for exotic animal dealers and buyers. Alan Green, Animal Underworld: inside America’s Black Market for Rare and Exotic Species (The Center for Public Integrity, PublicAffairs 1999).
 Alan Green, Animal Underworld: Inside America’s Black Market for Rare and Exotic Species (The Center for Public Integrity, Public Affairs 1999); Michael Satchell, How Some of America’s Best Zoos Get Rid of Their Old, Infirm, and Unwanted Animals, available at http://www.all-creatures.org/aip/nl-26aug2002-zoos.html (last visited Dec. 06, 2010) (discussing AZA accredited zoos that dump surplus animals into substandard roadside zoos and similar facilities and sell or give unwanted animals to exotic animal dealers) .
 The term “exhibitor” means “any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not; but such term excludes retail pet stores, organizations sponsoring and all persons participating in State and country 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.” 7 U.S.C.A. § 2132; 9 C.F.R § 1.1.
 Such businesses include, but are not limited to: companies that provide ape actors for commercial productions; companies that perform ape acts for private engagements; companies that lease apes for advertising or other purposes for any sort of compensation, including tax write-offs and good-will or publicity. Animal and Plant Health Inspection Service, U.S. Dept. of Ag., Animal Care Resource Guide: Exhibitor Inspection Guide, available at http://www.aphis.usda.gov/animal_welfare/downloads/manuals/eig/3.1_eig.pdf (last visited Nov. 21, 2010).
 USDA regulations define a Class C licensee as “a person subject to the licensing requirements … and meeting the definition of an “exhibitor” (§ 1.1), and whose business involves the showing or displaying of animals to the public. A class “C” licensee may buy and sell animals as a minor part of the business in order to maintain or add to his animal collection.” 9 C.F.R § 1.1; In 2009, APHIS had 97 Animal Care inspectors that were responsible for inspecting and monitoring over 2,700 Class C licensees. Office of Inspector General, U.S. Dept. of Agriculture, Controls Over APHIS Licensing of Animal Exhibitors, 2010 Audit Report 33601-10-Ch, available at http://www.usda.gov/oig/webdocs/33601-10-CH.pdf.
 OIG selected a sample of exhibitors that maintained no more than 4 animals; it did not investigate exhibitors with large inventories. Office of Inspector General, U.S. Dept. of Agriculture, Controls Over APHIS Licensing of Animal Exhibitors, 2010 Audit Report 33601-10-Ch, available at http://www.usda.gov/oig/webdocs/33601-10-CH.pdf.
 Joey was born in captivity in Texas in 2005 at the Sunrise Exotic Ranch.
 Pinto v. Connecticut Dept. of Environmental Protection, No. B-87-523 (D. Conn. Mar. 24, 1988).
 Prior audits revealed that as many as 70 percent of the licensed exhibitors that OIG investigated did not actually exhibit their animals; rather they were keeping the animals as pets. Office of Inspector General, U.S. Dept. of Agriculture, Controls Over APHIS Licensing of Animal Exhibitors, 2010 Audit Report 33601-10-Ch, available at http://www.usda.gov/oig/webdocs/33601-10-CH.pdf.
 International Primate Protection League v. Institute for Behavioral Research, Inc., 799 F.2d 934 (4th Cir. 1986).
 The term “Federal research facility” means each department, agency, or instrumentality of the United States which uses live animals for research or experimentation. 7 U.S.C.A. § 2132; Although the registration requirement does not apply to federal facilities, they are required to establish Institutional Animal Care and Use Committees that have the same composition and serve the same function as the research facilities that are regulated by APHIS. However, Federal IACUC’s report directly to the head of the Federal agency conducting the research, rather than to APHIS. 7 U.S.C.A. § 2143(c).
 7 U.S.C.A. § 2143(a)(6)(A) provides that: “Nothing in this chapter-- (i) except as provided in paragraphs (7) of this subsection, shall be construed as authorizing the Secretary to promulgate rules, regulations, or orders with regard to the design, outlines, or guidelines of actual research or experimentation by a research facility as determined by such research facility; (ii) except as provided subparagraphs (A) and (C)(ii) through (v) of paragraph (3) and paragraph (7) of this subsection, shall be construed as authorizing the Secretary to promulgate rules, regulations, or orders with regard to the performance of actual research or experimentation by a research facility as determined by such research facility; and (iii) shall authorize the Secretary, during inspection, to interrupt the conduct of actual research or experimentation.
 7 U.S.C.A. § 2143(a)(3); “Through the AWA Congress sought to ensure that animals used in research are treated humanely, but not at the expense of progress in medical research.” Moor-Jankowski v. Board of Trustees of New York University, No. 96 CIV. 5997, 1998 WL 474084 (S.D.N.Y. 1998).
 A “painful procedure” is defined as any procedure that would reasonably be expected to cause more than slight or momentary pain and/or distress in a human being to which that procedure is applied, that is, pain in excess of that caused by injections or other minor procedures.” 9 C.F.R § 1.1; Animal and Plant Health Inspection Service, U.S. Dept. of Ag., Animal Care Resource Guide Policy #11 (Apr. 14, 1997), available at http://www.aphis.usda.gov/animal_welfare/downloads/policy/policy11.pdf (last visited Nov. 21, 2010).
 7 U.S.C.A. § 2143(a)(3)(B); A fundamental goal of the AWA and the accompanying regulations is the minimization of animal pain and distress via the consideration of alternatives to animal experimentation. Toward this end, the regulations state that any proposed animal activity, or significant changes to an ongoing animal activity, must include: (1) a rationale for involving animals, the appropriateness of the species, and the number of animals to be used; (2) a description of procedures or methods designed to assure that discomfort and pain to animals will be limited to that which is unavoidable in the conduct of scientifically valuable research, and that analgesic, anesthetic, and tranquilizing drugs will be used where indicated and appropriate to minimize discomfort and pain to animals; (3) a written narrative description of the methods and sources used to consider alternatives to procedures that may cause more than momentary or slight pain or distress to the animals; and (4) the written assurance that the activities do not unnecessarily duplicate previous experiments. Animal and Plant Health Inspection Service, U.S. Dept. of Ag., Animal Care Resource Guide Policy #12 (June 21, 2000), available at http://www.aphis.usda.gov/animal_welfare/downloads/policy/policy12.pdf (last visited Nov. 21, 2010).
 7 U.S.C.A. § 2143(a); “Animals exhibiting signs of pain, discomfort, or distress such as decreased appetite/activity level, adverse reactions to touching inoculated areas, open sores/necrotic skin lesions, abscesses, lameness, conjunctivitis, corneal edema, and photophobia are expected to receive appropriate relief unless written scientific justification is provided in the animal activity proposal and approved by the IACUC.” Animal and Plant Health Inspection Service, U.S. Dept. of Ag., Animal Care Resource Guide Policy #11 (Apr. 14, 1997), available at http://www.aphis.usda.gov/animal_welfare/downloads/policy/policy11.pdf (last visited Nov. 21, 2010); 9 C.F.R § 2.31.
 9 C.F.R § 2.31; The regulations do not mandate that the anesthesia be general (i.e. render the animal unconscious). Accordingly, it would be legal to make a fully conscious ape physically immobile for operative procedures, as long as he is given local anesthesia.
 9 C.F.R § 2.31. Euthanasia must be accomplished through any method that involves rapid unconsciousness and death without evidence of pain or distress, unless another method is justified for scientific reasons. Id.
 “Major operative procedure” means “any surgical intervention that penetrates and exposes a body cavity or any procedure which produces permanent impairment of physical or physiological functions.” 9 C.F.R § 1.1.
 7 U.S.C.A. § 2143(a)(3)(D); “No animal assigned to a proposal is to be used in more than one major survival operative procedure unless the multiple procedures are included within one proposal, justified for scientific reasons … and preapproved by the Institutional Animal Care and Use Committee (IACUC)…. A major survival operative procedure must not be performed a second time on an animal in a separate proposal.” Exceptions to this rule may be made if approved by the facility’s IACUC and the Deputy Administrator of APHIS’s Animal Care division. Animal and Plant Health Inspection Service, U.S. Dept. of Ag., Animal Care Resource Guide Policy #14 (Apr. 14, 1997), available at http://www.aphis.usda.gov/animal_welfare/downloads/policy/policy14.pdf (last visited Nov. 21, 2010); 9 C.F.R § 2.31.
 International Primate Protection League v. Institute for Behavioral Research, Inc., 799 F.2d 934 (4th Cir. 1986).
 APHIS does not inspect the research facilities of Federal agencies.
 Federal research facilities are also required to establish IACUCs, which have the same composition and function as those required for all other research facilities; however Federal IACUCs do not report deficiencies or deviations to APHIS. Instead, those committees report directly to the head of the Federal agency that is conducting the research, as each agency is responsible for policing the actions of their respective research facilities. 7 U.S.C.A. § 2143(c); 9 C.F.R § 2.37.
 USDA regulations only require one member of the IACUC to review and approve research proposals involving apes. An IACUC member that is personally involved in a proposed experiment, may not participate in the review and approval of that project. 9 C.F.R § 2.31.
 At least two IACUC members must conduct the inspections and if they wish, Committee members may invite “ad hoc consultants” to assist in conducting the evaluations. Any Committee member that wants to participate in the evaluations cannot be excluded. 9 C.F.R § 2.31(c)(3).
 A research facility, rather than individual members of an IACUC, is liable if an IACUC violates the AWA. The Act contains no provision for holding committee members accountable if they fail to perform their statutory duties or act in direct contravention of the AWA. See, Office of Inspector General, U.S. Dept. of Agriculture, APHIS Animal Care Program Inspection and Enforcement Activities, 2005 Audit Report 33002-3-SF, available at http://www.usda.gov/oig/webdocs/33002-03-SF.pdf. (discussing OIG’s audit that revealed several deficiencies among overall operation and effectiveness of IACUCs). “Some IACUCs are not effectively monitoring animal care activities, protocols, or alternative research methods. This situation exists because (1) the IACUCs are only required to conduct facility reviews on a semiannual basis, (2) IACUCs experience a high turnover rate, and (3) some members are not properly trained. In very few cases, the facilities are resistant to change, showing a general disregard for APHIS regulations. As a result, the facilities are not conducting research in compliance with the AWA or, in some cases, not providing humane conditions for research animals.” Id.
 H.R. Rep. No. 94-801 (1976).
 In 1973, the Air Transport Association reported that the airline industry shipped an average of 3,700 animals per day. H.R. Rep. No. 94-801 (1976).
 H.R. Rep. No. 94-801 (1976).
 A carrier is the operator of any transportation enterprise, such as an airline, railroad, motor carrier, or shipping line that transports animals for a fee. 9 C.F.R § 1.1.
 An intermediate handler is any person or governmental entity that in the regular course of business assumes the temporary custody of animals for transport. 9 C.F.R § 1.1.
 According to USDA regulations, a registrant does not “routinely” transport animals if more than two years have lapsed since he or she transported an animal; in which case the registration may be placed on inactive status. 9 C.F.R § 2.27.
 Primary enclosures must be clearly marked in English “Wild Animals,” or “Live Animals,” with arrows or other markings to indicate the correct upright position of the primary enclosure. 9 C.F.R § 3.87.
 The term “primary enclosure” means “any structure or device used to restrict an animal or animals to a limited amount of space, such as a room, pen, run, cage, compartment, pool, or hutch.” 9 C.F.R § 1.1.
 Mothers with infants less than six months of age may be housed together in an enclosure that meets the size requirements for the mother. 9 C.F.R § 3.80.
 Exemptions from the minimum space requirements may be authorized for a research facility by the Institutional Animal Care and Use Committee, and for dealers and exhibitors by the APHIS Administrator. 9 C.F.R § 3.80. According to the Institute for Laboratory Animal Research, vertical space is very important to apes; although the AWA’s minimum height requirement for enclosures is 7 feet, the Institute recommends that apes be housed in enclosures that are at least 9 - 15 feet high. The Psychological Well-Being of Nonhuman Primates, Institute for Laboratory Animal Research (The National Academies Press 1998).
 The term “sanitize” means “to make physically clean and to remove and destroy, to the maximum degree that is practical, agents injurious to health.” 9 C.F.R § 1.1.
 9 C.F.R § 3.76; The sheltered area of sheltered housing facilities may have air temperatures above 85 degrees for any length of time if approved by an attending veterinarian in accordance with “generally accepted husbandry practices.” 9 C.F.R § 3.77.
 9 C.F.R § 3.78; This requirement may be waived by an attending veterinarian, “in accordance with generally accepted professional and husbandry practices.” Id.
 Animals must be fed more often if medically necessary, or as in the case of infants and juveniles, “in accordance with generally accepted professional and husbandry practices. 9 C.F.R § 3.82.
 Pub. L. No. 99-198, 99 Stat. 1645.
 See generally, Animal Legal Defense Fund, Inc. v. Glickman, 204 F. 3d 229 (D.C. Cir. 2000) (citizen suit challenging the adequacy of the regulation in establishing “minimum requirements ... for a physical environment adequate to promote the psychological well-being of primates,” because “the regulation completely delegates the establishment of such standards to the regulated entities”)
 51 Fed.Reg. 7950; 54 Fed.Reg. 10897; 55 Fed.Reg. 33448; 56 Fed.Reg. 6426.
 Animal Legal Defense Fund, Inc. v. Glickman, 943 F.Supp. 44 (D.D.C. 1996).
 Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720 (C.A.D.C. 1994).
 9 C.F.R. § 3.81(d). Any scientific research involving the use of restraint devices must be documented in a research proposal that is approved by the facility’s Institutional Animal Care and Use Committee (IACUC). For more on IACUCs, see Section IIIB on the regulation of scientific research facilities.
 The Psychological Well-Being of Nonhuman Primates, Institute for Laboratory Animal Research (The National Academies Press 1998).
 In the first draft of the regulations, there was a group housing requirement, based upon the agency’s finding that “nonhuman primates are social beings in nature and require contact with other nonhuman primates for their psychological well-being,” and that “[s]ocial deprivation is regarded by the scientific community as psychologically debilitating to social animals.” This requirement was deleted prior to the issuance of the final regulation. 54 Fed. Reg. 10822, 10917 (1989).
 The Psychological Well-Being of Nonhuman Primates, Institute for Laboratory Animal Research (The National Academies Press 1998).
 The Psychological Well-Being of Nonhuman Primates, Institute for Laboratory Animal Research (The National Academies Press 1998).
 The Psychological Well-Being of Nonhuman Primates, Institute for Laboratory Animal Research (The National Academies Press 1998).
 9 C.F.R § 3.81(e); An ape may exempted from all or part of an environmental enhancement plan, by the attending veterinarian or, in the case of scientific research, by the facility’s IACUC, pursuant to an approved research proposal. Unless the exemption is permanent, it must be reviewed at least every 30 days by a veterinarian, or every year by an IACUC. Id.
 The Psychological Well-Being of Nonhuman Primates, Institute for Laboratory Animal Research (The National Academies Press 1998).
 The Psychological Well-Being of Nonhuman Primates, Institute for Laboratory Animal Research (The National Academies Press 1998).
 The Psychological Well-Being of Nonhuman Primates, Institute for Laboratory Animal Research (The National Academies Press 1998).
 Animal Legal Defense Fund, Inc. v. Glickman, 204 F.3d 229 (C.A.D.C. 2000).
 “Attending veterinarian” means a person who has graduated from a veterinary school accredited by the American Veterinary Medical Association's Council on Education, or has a certificate issued by the American Veterinary Medical Association's Education Commission for Foreign Veterinary Graduates, or has received equivalent formal education as determined by the Administrator; has received training and/or experience in the care and management of the species being attended; and who has direct or delegated authority for activities involving animals at a facility subject to the jurisdiction of the Secretary. 9 C.F.R § 1.1; 9 C.F.R § 2.40.
 “Carrier” means the operator of any airline, railroad, motor carrier, shipping line, or other enterprise which is engaged in the business of transporting any animals for hire. 9 C.F.R § 1.1.
 The term “intermediate handler” means “any person, including a department, agency, or instrumentality of the United States or of any State or local government (other than a dealer, research facility, exhibitor, any person excluded from the definition of a dealer, research facility, or exhibitor, an operator of an auction sale, or a carrier), who is engaged in any business in which he receives custody of animals in connection with their transportation in commerce.” 9 C.F.R § 1.1.
 AWA regulations use the general term “commerce” to describe regulated transportation of apes. “Commerce” means trade, traffic, or transportation that occurs between a place in a state and any place outside of that state, whether it be another state, territory, or foreign country, or that occurs between two places in the same state but involves crossing through any place outside of that state; or any transaction which affects such “commerce.” 9 C.F.R § 1.1.
 Exposure to temperatures above 85(F) degrees and below 45(F) degrees for more than 45 minutes is prohibited, unless an ape is accompanied by a certificate of acclimation to lower temperatures. 9 C.F.R § 3.92.
 7 U.S.C.A. § 2143(a)(8); See also, 7 U.S.C.A. § 2145 (authorizing the Secretary to cooperate with state and local officials for the purposes of enforcing the AWA and any state or local laws that are “on the same subject”).
 Hendricks County Bd. of Zoning Appeals v. Barlow, 656 N.E. 2d 481 (1995); See also DeHart v. Town of Austin, Ind., 39 F. 3d 718 (7th Cir. 1994) (A USDA Class B licensed exotic animal dealer sued the town of Austin, Indiana challenging an ordinance prohibiting the possession of “any animal of a species defined hereinabove as a wild animal or animal which is capable of inflicting serious physical harm or death to human beings.” The plaintiff maintained that the ordinance was preempted by the AWA, because the AWA only authorizes state and local regulation of exotic animals, but not the outright prohibition of thereof. The Court held that such a regulation is “within the historic police power of a municipality,” and the AWA expresses no Congressional intent to interfere with the state and local regulation of exotic and wild animals.)
 R.L. Garner, Gorillas & Chimpanzees (Osgood, McIlvaine & Co., London 1896).
 William T. Hornaday, Gorillas, Past and Present, New York Zoological Society Vol. 17, No. 1 (Jan. 1915).
 Photo of Dinah the gorilla, 1915. New York Zoological Society Vol. 17, No. 1 (Jan. 1915).
 New York Zoological Society Vol. 17, No. 1 (Jan. 1915).
 Flexner Aid Found Sick Gorilla’s Cure, N.Y. Times, Jan. 11, 1915.
 Flexner Aid Found Sick Gorilla’s Cure, N.Y. Times, Jan. 11, 1915; Jungle Baby Lolls in Invalid’s Luxury, N.Y. Times, Dec. 21, 1914; New York Zoological Society Vol. 17, No. 1 (Jan. 1915); Bronx Zoo Gorilla Dies, New York Times, Aug. 2, 1915.
 Bronx Zoo Gorilla Dies, New York Times, Aug. 2, 1915.
 Jungle Baby Lolls in Invalid’s Luxury, N.Y. Times, Dec. 21, 1914.
 R.L. Garner, Gorillas & Chimpanzees (Osgood, McIlvaine & Co., London 1896).