Some individuals believe that no animal should suffer pain because of human activity. Others believe that some use of animals is allowable, so long as no unnecessary pain is inflicted upon any animal. Yet others believe that any human need is more important than any need that a non-human animal might have. These conflicting views, in the political context of the United States, have produced a variety of legal outcomes. At the federal level of the U.S. government, the primary legal battle has been fought within the realm of the Animal Welfare Act (AWA). This is a federal law of limited purpose and scope. It is not a broadly stated anti-cruelty law. It does not deal with all species of animals, as do most state anti-cruelty laws. Instead, the law focuses upon several very specific activities that have been shown in the past to be potential areas of animal abuse, and that have a nationwide aspect to them.
1. Introduction & History
During the early 1960's, there was considerable discussion in Congress concerning the issue of the use of animals in science for research and testing. This raised the issue of how the activity might be regulated from the national level as it had been done in Great Britain. (The National Anti-Vivisection Society was formed in Britain in 1875 and the first law concerning the use of animals in science passed in 1876.) At the same time, a related topic became a front-page issue. There was considerable public and media outcry over a story about how pet dogs and cats were being stolen and ultimately sold to research facilities. (See, "Concentration Camps for Dogs" Life Vol. 60 No.5 Feb 4 1966 at pages 23-29) These two topics formed a critical mass in the national political arena promoting the adoption of the AWA in 1966.
This initial law created a licensing system for animal dealers and laboratories that use dogs, cats, hamsters, guinea pigs, rabbits, or non-human primates. Subsequent amendments expanded the list of animals and the degree of federal regulation in the laboratory setting. Pet protection and provisions against the use of interstate shipment of animals used in illegal animal fighting ventures have also been added to the AWA. The scope continues to expand but is nevertheless limited. (For the full story of the history, see Christine Stevens, The History of the AWA.)
Some sense of the limited scope of the law can be realized by considering the many topics that are not covered by the federal law:
Use of animals in K-12 education Hunting, fishing and trapping Slaughter of animals (but see, Humane Slaughter Act) Animals in agriculture production Retail pet stores Treatment of pets by owners or others Use of rats and mice in research
- Veterinary care of animals outside licensed facilities.
Note - Scope of Federal versus State Law Concerning Animals
The U.S. Constitution does not mention animals, and the primary legal authority for the control of animals is at the state level of government. As a result, the question that must be addressed is why there are laws about the conditions of animals at the federal level and how these laws differ from those at the state level. State law governs the issues of liability for harm to animals, or harm caused by animals. Moreover, for over 120 years, state law has been the location for the criminal prohibitions against cruel acts to animals and the requirement of duty of care. But, these criminal laws are ineffective in many circumstances and are often difficult to prosecute or do not apply to specific areas of use such as animals in research. Additionally, a number of animal activities have a multi-state focus that makes one state's efforts to control a problem difficult, e.g. the interstate shipment of stolen pets. Therefore, a national law has been sought for a limited number of topics, particularly where there has been a desire to create a regulatory structure; with national rules, inspections and reports.
Note - Summary of provisions of the AWA
The AWA is, in the main, a regulatory law that seeks to control who may possess or sell certain animals and the living conditions under which the animals must be kept. The law provides for criminal penalties, civil penalties and revocation of permits for violations of the AWA.
- The animals covered by the Act include dogs, cats, primates and other mammals, but excluding birds, rats and mice.
- The individuals who must either obtain a permit to buy and sell listed animals or register for their use includes dealers of animals, exhibitors of animals, and research facilities that use listed animals, but, pet owners, agriculture use and retail pet stores are not under the control of the law.
- There are limitations/regulations on how animal may enter the controlled chain of commerce, to eliminate the use of stolen animals.
- There are limitations/regulations on the environmental conditions under which the animals must be kept.
- Research facilities may purchase listed animals only from licensed dealers.
- Those who transport the listed animals must comply with published regulations governing the well-being of the animals.
- Research facilities must create an Animal Care Committees to review the use of animals by the facility and inspect the animal housing facilities.
- Research facilities must abide by legal restrictions on the imposition of pain during research.
- Research facilities must comply with extensive regulations concerning the housing and care of animals used in research.
- In a separate provision, it is made illegal for any person to knowingly sponsor or exhibit an animal in any animal fighting venture to which any animal was moved in interstate or foreign commerce.
2. Random Source Dogs - the Chain of Commerce to the Laboratory Door
A. The Source of the Dogs and Cats - Illegal, Stolen Animals
As noted in the1966 Senate Report No. 1280:
The demand for research animals has risen to such proportions that a system of unregulated dealers is now supplying hundreds of thousands of dogs, cats, and other animals to research facilities each year . . . Stolen pets are quickly transported across State lines, changing hands rapidly . . . [and] State laws . . . proved inadequate both in the apprehending and conviction of the thieves who operate in this interstate operation.
Senate Report No. 89-1281, at 4-6 (1966), reprinted in 1966 U.S.C.C.A.N. 2635, 2636 and Web Center at History of the AWA.
To gain control of this problem, the AWA first deals with the source of the demand for the stolen animals. Section 7 of the AWA prohibits any registered institution from obtaining dogs or cats from other than government licensed sources:
It shall be unlawful for any research facility to purchase any dog or cat from any person except an operator of an auction sale subject to section 12 of this Act or a person holding a valid license as a dealer or exhibitor issued by the Secretary pursuant to this Act unless such person is exempted from obtaining such license under section 3 of this Act.
As the cost of animals is a very small part of the budget of a research institution, and as there are very negative public relations ramifications that can occur from the use of stolen pets, institutions have almost no incentive to deal in stolen animals. Additionally, there are now extensive record keeping requirements for research facilities (see Reg. Sec. 2.35 (b)) to make the tracking of possible stolen animals easier. Therefore, the real risk of pet thief is further back in the chain of commerce in animals. Consider the chain of commerce, or flow chart for dogs and cats. [Pop up chart]
City Pound »
Licensed Dealer »
« Private Breeder A
Pet owner »
Stolen animals »
« Private Breeder B
Private SPCA »
The critical step for the elimination of stolen pets is to make sure that licensed dealers find it difficult to use these animals as a source; to increase the risk to the dealer becoming part of the criminal chain if he or she uses stolen dogs and cats. As a simplistic definition for the moment, licensed dealers (Class B license) are those that buy and resell animals, while private breeders (Class A license) purchase animals only to add to their breeding stock and sell the animals they breed on their premises. Therefore, it is the Class B dealers which must be focused upon.
The AWA has two primary approaches to deal with the issue of pet theft. First, there is required an identification / information record trail that is supposed to follow the animal through the chain (see Reg. Sec. 2.50). Second, there is a required holding period when a dog or cat enters the chain of transfer. Both start with the Class B dealer. Now that the system has been in place for thirty years, is unlikely that a licensed dealer would steal animals to be later sold - the risk / reward ratio does not make sense to engage in criminal conduct. Rather, the real risk is that someone who does steal animals will sell them to a licensed dealer. Therefore, the requirements of regulations for source identification imposed upon Class B dealers attempts to discourage this activity. (Italics have been added.)
Reg. Sec. 2.75 Records: Dealers and exhibitors.
(a)(1) Each dealer, other than operators of auction sales and
brokers to whom animals are consigned, and each exhibitor shall make,
keep, and maintain records or forms which fully and correctly disclose
the following information concerning each dog or cat purchased or
otherwise acquired . . .
(i) The name and address of the person from whom a dog or cat was purchased or otherwise acquired whether or not the person is required to be licensed or registered under the Act;
(ii) The USDA license or registration number of the person if he or she is licensed or registered under the Act;
(iii) The vehicle license number and state, and the driver's license number and state of the person, if he or she is not licensed or registered under the Act;
(vii) A description of each dog or cat which shall include:
(A) The species and breed or type;
(B) The sex;
(C) The date of birth or approximate age; and
(D) The color and any distinctive markings;
In the 1990's the agency started back checking these records to see if the dealer listed sources were real and legal. They could confirm only 40% of the sources. In 1999 the agency reported they were 95% successful in tracing the listed sources of animals.
The second requirement to discourage the use of stolen animals is a holding period requirement. Section 5 of the AWA states:
No dealer or exhibitor shall sell or otherwise dispose of any dog or cat within a period of five business days after the acquisition of such animal or within such other period as may be specified by the Secretary: Provided, that operators of auction sales subject to section 2142 of this title shall not be required to comply with the provisions of this section.
This holding period at least makes it possible for the tracing of a stolen pet before the animal is transported so far away from its home that the animal is not discoverable. The AWA regulations make this even clearer (Italics have been added.) :
Reg. Sec. 2.101 Holding period.
(a) Any live dog or cat acquired by a dealer or exhibitor shall
be held by him or her, under his or her supervision and control, for a
period of not less than 5 full days, not including the day of
acquisition, after acquiring the animal, excluding time in transit:
B. The Source of the Dogs and Cats - Legal, Random Source
The issue of random source dogs (and cats) being used by laboratories was what helped bring the AWA into political reality. While today there is less of the theft of dogs than in the 1960's, the issue of pets going to research can be a hot and emotional, local, political topic. While no one advocates the use of stolen pets, the use of ex-pets is a broader and more difficult issue on which there is considerable disagreement. The issue arises when local shelters or government pounds decide to sell prior pet animals to research facilities rather than euthanize them. The prior owners, if known, are often not aware of this possible outcome. Some owners have said that they would rather have their animal killed than have it placed in the hands of researchers. Neither federal nor state law prohibits the transfer of previously pet animals to laboratories; they only regulates it.
3. Dealers & Exhibitors & Research Facilities
While the above material introduced animal dealers in the context of dogs and cats, the use and sale of other species will also qualify someone as a dealer. By the AWA's internal definitions, it can be determined who comes within the scope of the law. The general thrust of the law is to define those categories of people who must be licensed in order to engage in particular animal activities. The law will then seek to prohibit unqualified individuals from obtaining a license. Additionally, there in an inspection program to assure that those who have licenses meet the standards of care set out in the USDA regulations. Failure to provide care can result in criminal charges, civil fines and revocation of licenses, resulting in the individual being unable to continue to keep and use animals. [case] Under the AWA law, each individual needs to self identify and obtain a license or register.
Section 4 of the AWA creates the license requirement with the following language (Italics have been added.) :
No dealer or exhibitor shall sell or offer to sell, or transport, or offer for transportation, in commerce, to any research facility, or for exhibition, or for use as a pet any animal, or buy, sell, offer to buy or sell, transport or offer for transportation, in commerce, to or from another dealer or exhibitor under this chapter any animals, unless and until such dealer or exhibitor shall have obtained a license from the Secretary and such license shall not have been suspended or revoked.
Accept for the moment that "animal" is a limited definition. This section defines those acts that require a federal permit. If you breed and offer for sale pet animals, to pet stores, zoos or public universities with research facilities, then you must have a license. Note that research facilities, the destination for many animals, are not licensed, they must, instead, register under Section 6 of the AWA. The apparent focus on transportation is because that activity is one of the justifications for federal control over these issues.
The law defines more sharply the key terms of dealers and exhibitors:
AWA Sec. 2(f)
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, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes, except that this term does not include--(i) a retail pet store except such store which sells any animals to a research facility, an exhibitor, or a dealer; or (ii) any person who does not sell, or negotiate the purchase or sale of any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year;
(but see AWA Reg. Sec. 2.1 which has a long list of categories of activities that are not dealers.)
AWA Sec. 2(h)
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;
Before the picture can be complete, the definition of "animal" must be weighed, as it will considerably restrict the reach of the requirements of the AWA.
4. Which Other Animals
A. Beyond Dogs - The Scope of the term "Animal"
In any law, the legislatively drafted definitions are essential, but this is particularly true for the AWA. A word may have a legal definition within a law that differs from the common usage definition of that word. It is in a law's definitional section where many legislative/political battles are fought. With one artful phrase, entire special interest groups can be exempted from the restraints of a law (e.g., "but not to include retail pet stores"). It is within the definitional section that the contours of a law are first revealed.
For example, while a domestic house cat is a listed species and therefore an "animal", a snake is not within the definition of "animal" for purposes of the AWA. A particular sheep might be an "animal" under the AWA if it being used for drug research at a University, but the same sheep, if sold to a breeder of commercial sheep, would no longer be under the protection of the AWA, as it would fall outside of the definition of animal.
The Section now reads:
§(g) The term "animal" means any live or dead dog, cat, monkey (nonhuman primate animal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet; but such term excludes horses not used for research purposes and other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. With respect to a dog, the term means all dogs including those used for hunting, security, or breeding purposes.
Note that dead animals are covered as well, this is because otherwise there could be an avoidance of the AWA by simple killing before delivery to the research facility.
B. Animals Not Covered by the AWA
"warm-blooded animals"- A warm-blooded animal is one that is capable of generating internal heat in its cells so that the internal body temperature of the animal can be warmer than the surrounding environment. Humans are warm-blooded as are all other mammals. Birds are also warm-blooded. Thus, it is obvious that cold-blooded animals, including insects, fish, reptiles and amphibians, are excluded from any protection under the AWA. Indeed, the Act is misnamed and ought to be called the Mammal Welfare Act, not the Animal Welfare Act.
This was illustrated during legislative debates over the 1976 amendments. U.S. Representative Robert Bauman (R., Md.), during floor debate of the bill was concerned that shipments of crabs for the annual National Hard Crab Derbys in Crisfield, Maryland, as well as general shipments of live oysters and clams for exhibition and consumption purposes, would come under AWA regulations. An AWA supporter, Rep. Thomas Foley (D, Wash.) had to assure Rep. Bauman that such animals were not covered by the Act or under its proposed amendments. [See, Congressional Debate, Legislative History]
The Story of Rats, Mice and Birds
As noted, no mammals were specifically excluded from protection under the AWA as passed by Congress. However, when the regulations for the law were drafted by the Animal & Plant Health Inspection Service of the Department of Agriculture (APHIS), the term animal was defined using much of the same language as the AWA, but the following phrase was adding: "Such term excludes bird, rats, and mice . . .used in research. " This blanket exclusion of certain animals was neither discussed in the congressional history, nor considered within the Act itself before 2002.
According John McArdle, upwards of 95 percent of the animals actually used in research are rats, mice and birds. Research by the Library of Congress using a limited federal data base, suggest the annual use of 1.2 million rats, 4.2 million mice and 1.9 million birds. (See, Rats, Mice and Birds Database, Federal Research Division, Library of Congress, August 2000.) Others have suggest a much higher numbers but since there is no requirement to report the number of these species actually used in research the correct number cannot be known.
APHIS excluded this group in its pre 2002 regulations, in part because of the fear of not having the resources necessary to enforce the law against all the different facilities and also because of political pressure to exclude. The government estimates that as many as 800 labs would be added to the list of research facilities (presently 1,200 are listed) if rats, mice and birds were added to the list of species under the AWA.
In 2000, in settlement of a lawsuit, the APHIS agreed to amend the regulations and bring rats, mice and birds within the law. This has been vigorously opposed by the research industry. The National Association of Biomedical Research claims that the new regulation is unnecessary as such animals are already protected under Guidelines from other agencies (The Guide to The Laboratory Use of Animals) and that implementation under the AWA would cost in the nature of $80 to $280 million to comply with the standards. The research industry was concerned enough about this issue that it obtained the intervention of Congress which amended a farm spending bill (jurisdiction for AWA has often been asserted by agriculture committees in Congress - helping to assure that agricultural animals are excluded from the requirements of the law). Under the Congressional amendment, the writing of the new regulations was delayed one year. (See, Frederic J. Frommer, (AP) "Scientists Look to Protect, Birds, Mice, Rats used in Research," Lansing State Journal 3A Fri. July 6th 2001.)
In 2002, Senator Jesse Helms again added an amendment excluding rats and mice from AWA coverage this time to the huge Agriculture Bill. Notwithstanding a focused political battle by many individuals and non-profits the Helms amendment did become law in 2002, thus making it the expressed intention of Congress that rats, mice and birds not be within the provisions of the AWA. The law does require an extensive report about the use of rats and mice be drafted by National Research Council and submitted to Congress in 2003.
C. Examples of Coverage
If you combine the definitions of exhibitors, dealers and animals together then the following can be offered as examples of the scope of the law.
If Mr. Boa has 100 snakes and sells venom to testing labs for over $10,000 per year, he is not a dealer as his animal is not within the definition.
If Mrs. Poodle raises long-haired cats for sale to pet stores and grosses $20,000 per year, she will have to have a dealer�s license.
The city zoo of Potterville, having purchased a parrot for display ought to have an exhibitor�s license.
Primates Worldwide, imports monkeys and sells them to zoos and research centers. Thus, they would need to have dealer�s license.
Big University uses rabbits in hormone research; it will have to register with the USDA.
Little College conducts research on fiber sheep with a herd of 200. As sheep of this use are excluded from the Act, the College would not have to register and would not be subject to inspection.
Big Blue is a retail pet store in a shopping center, selling $600,000 worth of pets per year. No license is required as retail pet stores are specifically excluded from the Act.
Note: Retail Pet Stores
Doris Day Animal League in the late 1990's filed a petition for rule-making with APHIS. See 62 FR 14044-47. The petition sought to narrow the definition of "retail pet store" so as to allow only those stores in a commercial setting to have the advantage of the exclusion from the AWA and its licensing and inspection provisions. The proposal would have brought retail sales done from a home into the control of the AWA. This would increase the number of entities that would have to be licensed and inspected. Assuming that many home hobbyists who make retail sales would not be able to meet the housing and care requirements of the regulations of the AWA, then presumably they would have to go out of business.
Final action in 64 FR 38546-48 (July 19, 1999) The agency gives five reasons for why it decided not to amend the regulations.
- Congress could have changed the regulatory definition and has not. Additionally, regulation of wholesale dealers has had a spill over effect to improve the conditions at the retail level.
- Home sellers are subject to self-regulation and pressures from the purchasing public and assorted breed and registry organizations.
- Such an amendment might shift limited agency resources of money and personnel to inspections where they are not needed the most.
- Retail outlets are presently governed by state laws, in particular criminal state cruelty laws.
- Many would consider the enforcement of the standards into private homes an "intrusion" by the Federal Government and a serious invasion of privacy.
Number of licensed and registered individuals. (List of individuals available off APHIS website)
Dealers Class A
5. Regulatory Process
Assuming that a person and his or her activity is within the AWA definitions of dealer or exhibitor, then application for a license must be made. To obtain the license there must be a showing of an appropriate physical facility with the capacity to keep the animals in question. There may be an inspection by the agency before the permit will be issued. Once in operation then a large number of regulations will come govern the conduct of the facility.
- Record-keeping requirements
- Identification of animal and source requirements
- Housing and care requirements
- Payment of modest annual fees
Now we arrive at the heart of the matter. All of this law and process is to improve the living conditions for animals, and the government has decided to set these out in considerable detail. The standards of care for the housing, feeding, and transportation of covered animals are set out in extensive detail in the regulations as adopted by APHIS. There are specific requirements for dolphins and rabbits, hamsters and lions. See Regulations
Rules, Rules and more Rules
In this overview, a detailed consideration of all the protective rules adopted by the agency is not possible, so there will just be some examples. The law itself, as passed by Congress, can be deceptively simple in its language. For example, Sec 13 of the law requires that the USDA "promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors." Within the law, this is elaborated only to the extent of listing the topics for minimum requirements:
(A) for handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, adequate veterinary care, and separation by species where the Secretary finds necessary for humane handling, care, or treatment of animals;
So, for a particular animal such as a cat or a sheep, the regulations of the agency must be consulted to determine housing conditions. (Remember that only specific animals held by particular individuals are covered by this law, not pet owners) For cats, there is a special subpart of the regulations dealing with them. It covers three pages of fine print. For the issue of the cage, the regulations state:
(b) Additional requirements for cats.
(1) Space. Each cat, including weaned kittens, that is housed in any primary enclosure must be provided minimum vertical space and floor space as follows:
(A) Each primary enclosure housing cats must be at least 24 in. high (60.96 cm);
(B) Cats up to and including 8.8 lbs (4 kg) must be provided with at least 3.0 ft\2\ (0.28 m\2\);
(C) Cats over 8.8 lbs (4 kg) must be provided with at least 4.0
ft\2\ (0.37 m\2\);
(iii) Each queen with nursing kittens must be provided with an additional amount of floor space, based on her breed and behavioral characteristics, and in accordance with generally accepted husbandry practices. If the additional amount of floor space for each nursing kitten is equivalent to less than 5 percent of the minimum requirement for the queen, such housing must be approved by the attending veterinarian in the case of a research facility, and, in the case of dealers and exhibitors, such housing must be approved by the Administrator; and
(iv) The minimum floor space required by this section is exclusive of any food or water pans. The litter pan may be considered part of the floor space if properly cleaned and sanitized.
For access into the regulations by species:
Subpart A--Specifications for the Humane Handling, Care, Treatment, and Transportation of Dogs and Cats
Subpart B--... of Guinea Pigs and Hamsters
Subpart C--... of Rabbits
Subpart D--... of Nonhuman Primates
Subpart E--... of Marine Mammals
Subpart F--... of Warmblooded Animals Other Than Dogs, Cats, Rabbits, Hamsters, Guinea Pigs, Nonhuman Primates, and Marine Mammals
But these regulations may not have all the answers. This issue will arise when an inspector comes to the facility and observes the conditions present. To further aid the regulated party in knowing what the USDA considers important, in February of 2001 the USDA adopted two other significant publications as "guidance" for the care of animals. But it is unclear as to whether these are enforseable as a matter of law because they are not formal regulations.
Katherine Zopf, Administration of the Animal Welfare Act (2000)
Pursuant to the Animal Welfare Act ("AWA"), the Secretary of the United States Department of Agriculture is charged with the promulgation of regulations necessary for the carrying out of the AWA.
Within this Department, the Animal and Plant Health Inspection Service ("APHIS") conducts investigations of facilities subjected to the regulations promulgated by the Secretary under the AWA. There are two distinct types of investigations conducted by APHIS.
- The first type of investigation occurs solely as a result of the fact that inspection of both facilities and records is provided for under the regulations. These routine inspections can take place at any time, and APHIS is not required to give advance notice to the owners of a facility that an inspection is scheduled to take place.
- The second type of inspection occurs as the result of a complaint filed with the USDA or APHIS regarding suspected violations of the regulations promulgated under the AWA (see In re: Marilyn Shepherd, 57 Agric. Dec. 242 (1998). Any time a complaint is filed, APHIS is required to conduct an inspection, at least of the facility.
In the event that violations are found to exist, either with regard to the condition of the facility or of the records required to be maintained by the licensees, inspectors often will allow time for the licensees to correct the violations (i.e. provide a "correct-by" date) at which time a follow-up inspection will automatically be conducted.
When the Agency believes that there is a violation which is deserving of some level of sanctions, then civil complaints against individuals who violate the law or the regulations are filed within the USDA. The USDA is represented by its own general counsel in subsequent administrative proceedings. Although defendants may be represented by their own counsel during these administrative proceedings, representation by counsel in an administrative disciplinarian proceeding is not guaranteed by the Constitution.
The Administrative law judge ("ALJ") presides at the presentation of evidence in a formal administrative proceeding. The ALJs are appointed by the USDA; however, they are assigned cases by rotation in order to ensure their independence from the prosecutors of the cases. The ALJ must provide a record showing a ruling on each finding and conclusion that is presented at the proceeding. Remedies available to the agency are suspension or revocation of a license as well as civil fines. Criminal charges are available, but seldom used.
If the findings, conclusions and proposed order of the ALJ are sufficient, the USDA may adopt them without a change.
In the event that the proposed order of the ALJ is challenged, the Judicial Officer ("JO") handles all appeals. The JO can reverse a decision of the ALJ whenever a preponderance of the evidence suggests that the decision of the ALJ was incorrect. However, JO are generally deferential to the decisions of the ALJ, and thus very often will adopt the initial decision of the ALJ.
The Administrative Procedure Act allows for an individual to seek redress of an adverse agency action in court. However, as a general principle, all administrative processes must be exhausted before an individual may seek judicial review of the decision of the USDA. The decision of the JO would be final agency action for purposes of the APA. Additionally, although courts review the final decisions of the USDA, they are often deferential to the expertise of the agency, and very often will affirm the final decision of the agency.
[In 1999 there were 313 investigations carried out by APHIS. The enforcement process resulted in 143 warnings, 79 settlements and 28 went to administrative law judge hearings during 1999. In total, $667,000 in penalties were assessed.]
Note: Who can complain about the actions of the agency or licensed private parties?
Under the Administrative Procedures Act of the US any person "injured" by the actions (or non-actions) of an agency, in this case APHIS, may file a lawsuit to see redress of the injury. If you are denied a license or if the agency adopts a regulation that impacts how you hold and ship animals, you would have potential economic injury and may sue the agency about this injury. What about those individuals and organizations that seek to promote the protection of animals under the AWA? If a chimpanzee is owned by Big University and held in a building to which no member of the public has access, then it is difficult to argue that someone outside the university is or may be injured by the housing conditions of the chimpanzee. The chimpanzee him or herself can not presently file a suit to protect the Congressionally declared interest. Until 1998, when an observer of a primate at a zoo was allowed standing, no one had been successful in satisfying the standing requirement in an AWA lawsuit with other than an economic interest. [See, Glickman, v. Fund Defense Legal Animal,154 F.3d 426, 332 U.S.App.D.C. 104 (1998).]
The case ALDF v. Glickman (above) established the concept that individuals with fact patterns that violate their esthetic interests may file a suit under the AWA. This requires some interaction between the humans and the animal in question. As in the environmental context, esthetic interest was measured as a viewing event. The judges agreed that injury could also arise out of the quality of the viewing experience. The plaintiff in this case was a person in the habit of viewing a particular primate at a small zoo. The conditions of the housing for the primate were terrible, so the person made a number of trips to see the animal, and ultimately complained to the government about the conditions in which the primate was being held. The person claimed, through his lawyer, that these conditions were the result of the failure of the federal agency to adopt regulations which were in conformity with the intentions of Congress when the 1985 Amendment to the AWA were adopted. In particular, the case raised that portion of the law that required holders of primates to provide "for a physical environment adequate to promote the psychological well-being of primates." [Sec.43(a)(2)(A)] The alleged failure of the zoo to comply with the law resulted in the person having to watch the unnecessary and inappropriate suffering of the animal thus legal standing to pursue the issue was found to exist.
Remember that the issue of standing is just to get access to the courts; having passed through the courthouse door the party filing the suit must then show the violation of some law.
[Other complexities are involved, for a full analysis of legal standing generally, see Note: Legal Standing.]
6. Science & the Use of Animals
The pursuit of science has long been one of the areas where the interests of animals have been set aside for the needs of science. The first true anti-cruelty law in the US, adopted in 1867 in New York, had only one exception to its provisions and it was not the agricultural use of animals, or the practice of hunting but rather the perceived needs of science that received special consideration:
Section 10. PROVISO.
Nothing in this act contained shall be construed to prohibit or interfere with any properly conducted scientific experiments or investigations, which experiments shall be performed only under the authority of the faculty of some regularly incorporated medical college or university of the state of New York.
[For full discussion of 1867 New York Act, see Favre & Tsang, The Development of Anti-Cruelty Laws During the 1800's, Web Center, Articles]
As no law in the U.S. prohibits the use of animals in scientific experimentation, the nature of the debate is clear: when will the interests of the public in advancing the general knowledge of the world around us outweigh the interests of the animals to be free from pain and suffering? The answer to this question is not fixed but evolving. Over the past fifty years each passing decade has seen more weight given to the interests of the animals, without changing the public's core interest in good science. This evolution of a more protective attitude can be seen at the federal level in the increasingly detailed focus of the federal Animal Welfare Act regarding the actions of science when animals are used. The lesson of the past twenty or thirty years is that considerable reduction of animal pain and suffering has occurred without impacting the ability of science to proceed. A number of factors have come into play:
Individual scientists are increasingly unable to make decisions about animal use while hidden behind closed laboratory doors. Most institutions have Animal Care Committees, which require an investigator to justify their proposal by full presentation to the Committee. [For sample application and institutional guidelines, see Web Center, AWA Documents.]
There has been increasing awareness that the housing of animals before and after experiments raises as many, if not more, issues than the experiments themselves, and the legislature is much more willing to adopt strictures in this area.
The cost of keeping animals has become significant enough that there are economic reasons for institutions to consider reductions in the number of animals or even the use of alternatives to the use of live animals.
If science is such a special case, there should be an understanding about what is encompassed within the term. When does an activity constitute a scientific investigation?
First, most science does not deal with the infliction of pain on non-human animals. Questions about the origin of the universe, or the nature of black holes obviously does not involve animals. Much of science that focuses upon the natural world also does not involve the infliction of pain by humans. For example, the field research, by observation of wild families of chimpanzees, done by Jane Goodall has provided a wealth of information about their social nature. (See, The Chimpanzee of Gombe: Patterns of Behavior, (1986) Belnap Press.) Likewise, the observation of confined chimpanzees by Roger and Debbie Fouts has given great insight about the mental ability of chimpanzee who can communicate with American Sign Language. Again, this science was done without the infliction of pain, but with the confinement of chimps (See, Roger Fouts, Next of Kin (1997) Living Planet Book.) But when a researcher in Maryland sought to study the nature of serious neurological injury such as a stroke, the nerves of primates were intentionally cut in order to seek this information. (See, IPPL v. Institute for Behavioral Research, Inc.,799 F.2d 934 (4th Cir. 1986).)
The nature of science, its pursuit of universal truths, is a book topic in and of itself. A few of the bigger thoughts about the nature of science are included in Appendix A.
Some individuals and organizations believe that animals should not be used in research at all.
We believe that although animal experiments are sometimes intellectually seductive, they are poorly suited to addressing the urgent health problems of our era, such as heart disease, cancer, stroke, AIDS and birth defects. Even worse, animal experiments can mislead researcher or even contribute to illness or deaths by failing to predict the toxic effects of drugs. Fortunately, other, more reliable methods that represent a far better investment of research funds can be employed.
Neal Barnard and Stephen R. Kaufman, "Animal Research Is Wasteful and Misleading", Scientific American (Feb. 1997) at 80. See National Anti-Vivisection Society, www.navs.org.uk.
Others vigorously defend the use of animals.
Experiments using animals have played a crucial role in the development of modern medical treatments, and they will continue to be necessary as researchers seek to alleviate existing ailments and respond to the emergency of new disease.
Jack H. Botting and Adrian R. Morrison, "Animal Research Is Vital to Medicine", Scientific American (Feb. 1997) at 83. This volume of Scientific American also has a good article on the history of animals used in research.
Finally, some accept that animals must be used in research, but would allow it only under strict criteria and when only absolutely necessary. See, David Favre, Laboratory Animal Act: A Legislative Proposal, 3 Pace Environmental L. Rev. 123 (1986).
A. The Law - Housing Animals
The AWA is somewhere in the middle of this debate. From its inception, the law has controlled the living conditions of animals before and after there use in experiments. With in amendments in 1985 the federal law become more intrusive in the acts of experimentation, prescribing certain rules about animal conditions during experimentation.
Section 13 of the AWA contains the requirement for humane care of animals at research facilities. The first subsection of the law applies generally to dealers, exhibitors and research facilities. Subsection (a)(2)(A) contains the usual list of care categories: housing, feeding watering ventilation and shelter, etc. Subsection (a)(2)(B) contains some unique language, as it requires APHIS to adopt regulations:
(B) for exercise of dogs, as determined by an attending veterinarian in accordance with general standards promulgated by the Secretary, and for a physical environment adequate to promote the psychological well-being of primates.
The implementation of this aspect of the regulations was the subject of a lawsuit that took many years to proceed through the courts and had to first overcome the problems of standing (see above). Note that these provisions are housing provisions and do not impact the nature of the experiment on an animal. The issue of primate housing continues to cause considerable controversy as under the present regulation the determination of what is appropriate social housing has been delegated to the various institutions, and no national standard has been adopted. (See, Animal Legal Defense Fund v. Glickman, 204 F.3d 229, 340 U.S.App.D.C. 191 (2000))
An example of the general housing regulations are the cage size requirements:
- For guinea pig of 350 grams the cage should be - 90 sq inches (10" x 9") (Reg. Sec. 3.28(b))
- For dogs: "The shelter structures must be large enough to allow each animal to sit, stand, and lie in a normal manner and to turn about freely." (Reg. Sec.3.3(d))
- For great apes over 55.0 lbs, the minimum cage size is 25 sq. ft. (Reg. Sec. 3.80)
Primates are a special case under the AWA. Under the 1985 Amendments, all facilities must provide housing conditions which take into account the psychological well-being of primates. Unfortunately the federal agency decided not to adopt performance regulation, but allocated the responsibility to the facilities themselves. See Animal Legal Defense Fund, Inc. v. Glickman, 204 F.3d 229, 340 U.S.App.D.C. 191 (D.C.Cir. Feb 01, 2000). In 1999 the agency suggested a draft policy, but no final action has been taken, see proposed policy. For detailed consideration of what science has determined about this issue see, Final Report on Environment Enhancement to Promote the Psychological Well-being of Nonhuman Primates, U. S. Department of Agriculture Animal and Plant Health Inspection Service Animal Care, Riverdale, MD July 15, 1999
B. The Law - Animals Used in Experiments
The next subsection, (a)(3) is specifically focused on animals in research. The law requires the regulations to assure certain outcomes:
(A) for animal care, treatment, and practices in experimental procedures to ensure that animal pain and distress are minimized, including adequate veterinary care with the appropriate use of anesthetic, analgesic, tranquilizing drugs, or euthanasia;
(B) that the principal investigator considers alternatives to any procedure likely to produce pain to or distress in an experimental animal;
(C) in any practice which could cause pain to animals--
(i) that a doctor of veterinary medicine is consulted in the planning of such procedures;
(ii) for the use of tranquilizers, analgesics, and anesthetics;
(iii) for pre-surgical and post-surgical care by laboratory workers, in accordance with established veterinary medical and nursing procedures;
(iv) against the use of paralytics without anesthesia; and
(v) that the withholding of tranquilizers, anesthesia, analgesia, or euthanasia when scientifically necessary shall continue for only the necessary period of time;
(D) that no animal is used in more than one major operative experiment from which it is allowed to recover except in cases of--
(i) scientific necessity; or
(ii) other special circumstances as determined by the Secretary; and
(E) that exceptions to such standards may be made only when specified by research protocol and that any such exception shall be detailed and explained in a report outlined under paragraph (7) and filed with the Institutional Animal Committee.
This language from the 1985 amendments represents the first time that Congress directly stated its intent to govern, by regulation, certain actions that might occur during a scientific experiment. Congress has chosen to concern itself with how experiments are carried out, while leaving the decision of what issues should be researched to the scientific community.
This section does not give the Secretary the authority to regulate whatever he may choose in a research facility. The purpose for any such regulation must be "to ensure that animal pain and distress are minimized." Note the term "distress" is used. This is different from the term pain and more closely attuned to the issue of psychological well-being. However, the law does not require the elimination of pain and distress, but rather that they be "minimized." This is often an elusive term, for that which is judged as minimum by some people may be unacceptably high to others. The best minimum in this setting would be zero - no pain or distress. But, there may be other circumstances where that is not possible. The problem is that Congress did not give us, or the Secretary, a standard by which to decide what level of effort is demanded before the "minimized" requirement of the law is met. What if it would require $100 worth of equipment to eliminate one cause of distress in a lab, but another cause would require $100,000 worth of lab reconstruction? What if the hiring of trained support staff to reduce the stress animals suffer during handling cost $30,000 per year? There is a large amount of gray area in this part of the AWA. While the AWA does not state that cost is a factor to be balanced against levels of pain, at some level it inevitably becomes part of the regulatory equation. The Secretary must seek minimization, but it is unlikely that it will be be zero.
Animals in Research:
| || ||1998|| |
|Dogs|| ||70,541|| |
|Cats|| ||23,238|| |
|Primates|| ||54,927|| |
|Rabbits|| ||288,222|| |
7. Institutional Animal Care Committees
A growing criticism of the AWA during the early 1980's was the infrequency of USDA inspections generally, and specifically those inspections of research facilities. A once-a-year walk through by a federal inspector was not believed sufficient to protect the interests of the animals in a laboratory. Given the reluctance of Congress to have the federal government impose itself upon research facilities, the lack of human resources to provide for extensive USDA inspections, and the desire that scientific research remains self-directed, the 1985 amendments provided a new approach. They required the creation of a committee, which by its very nature would become a local focal point for most research animal care and welfare issues. With this action, Congress brought these concerns out of the dark secrecy of a research facility and into at least a semi-public view. This committee is to be the federal government's watchdog in the laboratories by conducting a minimum of two inspections annually, with reports available to the federal government. The provisions of Sec 13(b) of the AWA deal with three topics: the creation of the committee, the duties of the committee, and the responses required to negative reports by the committee.
The idea of creating a local-level review committee was not new with the AWA's 1985 amendments as a number of universities had previously created them. Also, during 1985, a revised National Institutes of Health Guideline for grant recipient institutions was released which included provisions for an animal care and use committee. Finally, when the funding authorization statutes for the NIH were redrafted and passed by Congress during 1985, for the first time an institution receiving NIH funds had to have an animal care committee. While these statutory provisions are not as detailed as those under the AWA, they are roughly equivalent in their creation of a review committee and its responsibilities. Presumably one committee per facility will satisfy both statutory requirements.
Returning to Sec. 13(b) of the AWA:
(1) . . . Each committee shall be appointed by the chief executive officer of each such research facility and shall be composed of not fewer than three members. Such members shall possess sufficient ability to assess animal care, treatment, and practices in experimental research as determined by the needs of the research facility and shall represent society's concerns regarding the welfare of animal subjects used at such facility.
While the power to appoint the committee members clearly rests with the chief executive officer of each research facility, there are two broad parameters within which the appointments must be made. First, the appointees must have knowledge about animal care. The second is a mandate that the members of the committee "shall represent society's concerns regarding the welfare of animals used at such facility." These words are more reflective of a Congressional intent rather than that of a mandatory action. The composition of a committee has never been challenged by the APHIS.
In addition, Congress also provided specific requirements for two of the members of the Committee.
Of the members of the Committee--
(A) at least one member shall be a doctor of veterinary medicine;
(B) At least one member--
(i) shall not be affiliated in any way with such facility other than as a member of the Committee;
(ii) shall not be a member of the immediate family of a person who is affiliated with such facility; and
(iii) is intended to provide representation for general community interests in the proper care and treatment of animals; and ...
Congress is obviously seeking to obtain some balance of views on these committees. Animal rights/welfare organizations fought for a public member very strongly; their hope being that a public voice on the committee could help eliminate some of the animal welfare problems in research facilities. Whether or not this will occur depends entirely upon whom the research facilities appoint as the public members. If an appointment authority does not seek out knowledgeable promoters of animal protection, from local humane societies for example, then the public member could qualify under the statute but be totally ineffective as a strong minority voice for the interests of the animals.
It is doubtful that most committees will only have the minimum number of three members; five or more members is a more likely number, further diminishing the vote of the one public member. The only restriction of committees of larger than three is that no more than three can be from the same administrative unit of the research facility. Thus, the medical school of a university could not hold more than three positions on a seven-member committee.
The primary statutory responsibility of the committee is to engage in inspections of the research facility at least twice a year. The language in this paragraph makes it clear that the committee is not limited to reviewing the housing conditions of an animal research facility, but also to the research areas as well. The purpose of the inspection is "to ensure compliance . . . To minimize pain and distress to animals." Under this provision the members of the committee have the right to inquire about and observe any painful or distressful procedures or conditions within the facility, whether or not they are part of a pre-existing protocol.
Under the 1985 NIH law, the Animal Care Committee has the responsibility to assure compliance with the NIH guidelines. Therefore, assuming the same committee operates under both federal statutes, this would give the committee substantially broader authority than just being responsible for inspections. At many research facilities the committee will review the proposed research projects to assure compliance with the AWA requirements, the NIH "Guide for the Care and Use of Laboratory Animals," and such other areas of responsibility as are delegated to it by the research facility in question.
In 1976 one of the major areas of concern addressed by Congress was that of animal fighting. After some sharp debate, the House adopted a new provision which made three basic activities illegal:
1) sponsoring or exhibiting an animal in an animal fighting venture;
2) interstate shipment of animals to be used in animal fighting venture; and
3) use of U.S. mails or communication systems to advertise or promote animal fighting ventures.
There was no comparable provision in the Senate bill. During Senate-House Conference Committee deliberations, the House provision was adopted by the Committee, but only after it clarified a number of points concerning birds. It should also be pointed out that the adoption of this provision was over the expressed objection of the USDA and the U.S. Attorney General, both of whom stated their belief that animal fighting was a state and local law enforcement issue.
This new provision (Section 26) is like a separate statute in and of itself, independent of the other provisions of the AWA. It contains its own definitions, authority for investigations, and penalty provisions. While some clarifying regulations might be helpful, the subject matter is not a regulated activity, and the Secretary did not have to promulgate regulations. It simply defines certain actions that are illegal. As such, enforcement of these provisions is not within the day-to-day responsibilities of the APHIS veterinarians and staff who enforce the other provisions of the Act. Criminal investigations are much more difficult than inspections, and not something which the APHIS staff is normally expected to do. This, coupled with a lack of funding, has made this a fairly sterile provision. Although it is a criminal act on the books, the law is not enforced because of its lack of priority among those with the authority to investigate. It is through the efforts of animal welfare organizations that were responsible for applying the political pressure needed to have the animal fighting provisions adopted by Congress. However, they have failed to obtain enforcement funding from Congress or to convince the Secretary to give it priority consideration. In essence, animal fighting remains an enforcement responsibility for state and local police who also consider it a low priority. This really does not have anything to do with the regulatory system created in the prior sections of the AWA. But it dealt with animals so it was placed within the AWA.
The 2002 amendments to the AWA make it illegal "to knowingly sponsor or exhibit an animal in a fighting venture, if any animal was moved in interstate or foreign commerce." If it a case of a venture with in bird in a state where fighting is still legal then the person charged must know that at least one bird present was part of interstate commerce.
Appendix A - What is Science about?
David Favre and Matthew McKinnon, The New Prometheus: Will Scientific Inquiry Be Bound by the Chains of Government Regulation?
19 Duq. L. Rev. 651 (1981)
A. The Scientist's Definition
While it is possible to give short definitions of science, it is difficult for the non-scientist to gain significant insight into the process of scientific inquiry from them. Nevertheless, such definitions will provide a useful starting point for discussion.
Dr. Joshua Lederberg, a Nobel laureate, has suggested the following definition:
The profession of science is the search for truths about the natural world; more precisely, it seeks verifiable generalizations that simplify human comprehension and prediction of natural phenomena. Still more must be said: the truths must be novel and significant � which is to suggest that they are measured according to their impact on the minds of other scientists, a statement which labels science firmly as a human and social enterprise. Lederbberg, The Freedoms and the Control of Science, 45 S. Cal. L. Rev. 596, 599 (1972)
It should be noted that when Dr. Lederberg uses the work "truth" it does not denote a good or bad quality but a scientific "truth"; i.e., that which is subject to empirical verification.
In his book, The New Priesthood, Ralph E. Lapp describes science slightly differently:
the goals of science focus upon the exploration of the unknown and the enlargement of knowledge. Very often the greatest discoveries come when a man sees relationships between things which no one recognized before � or sees these in a new light. But usually science expands into the unknown like a huge amoeba, moving first this way and then that, seeking the virgin and the fertile. Its goals are determined by opportunity and chance, and sometimes design.
Finally, J. Bronowski, arguing that science at its highest level is an extremely creative human process, has offered the following definition:
All science is the search for unity in hidden likenesses . . .
The scientist looks for order in the appearances of nature by exploring such likenesses . . .
The progress of science is the discovery at each step of a new order which gives unity to what had long seemed unlike. Faraday did this when he closed the link between electricity and magnetism. Clark Maxwell did it when he linked both the light. Einstein linked time with space, mass with energy, and the path of light past the sun with the flight of a bullet . . . J. Bronowski, Science and Human Value (1965).
As can be seen in the above definitions, science is the search for knowledge of how and why the universe around us functions. The process by which this knowledge is acquired is as complex as, and indeed might be considered parallel to, the development of the human mind. At times the process involves merely mechanical data gathering or tedious computation, but like art, it is also a creative process in which the scientist, like the artist, seeks to provide some new insight or a different, broader, perspective of nature.
In addition, science is a social activity. The growth of scientific knowledge is heavily dependent upon the interchange of ideas among scientists, both contemporaries and predecessors. The scientist who makes a "breakthrough" not only "stands on the shoulders of giants, and hence can see a little farther," but he perceives reality subject to all of the strengths and weaknesses of his colleagues.
How does one know if an activity is that of science? The following represents some of the key attributes:
- uses a suitable method for describing its subject matter; e.g., mathematics, words, diagrams, or symbols;
- uses an existing method systematizing or classifying the material to be described, or creates a new method for doing so; e.g., classifying plants into species on the basis of particular features, or naming and classifying sub-atomic particles;
- uses hypotheses for the purpose of predicting or accounting for the occurrence of natural phenomena;
- uses experimentation , as previously defined, to test hypotheses. Experimentation should include:
(a) planning objectives and procedures,
(b) [having the] potential for recognizing error and minimizing it by proper design
(c) gathering data and insuring its uniformity,
(d) analyzing the data, and interpreting the data and drawing conclusions based on the data.