Maryland legislature & SAEN try to undo some of the damage
BALTIMORE, CINCINNATI––Can a federal agency nullify state law just by taking down a web site?
While proposing budget cuts that would hamper animal-related law enforcement under every federal agency with relevant jurisdiction, the Donald Trump administration on February 17, 2017 at least temporarily crippled a new Maryland law meant to stop the sale of dogs bred at “puppy mills” with histories of violating the federal Animal Welfare Act.
State law was contingent on federal inspections
Nullifying the Maryland law was accomplished, to the benefit of “puppy millers” already caught in violation of Animal Welfare Act requirements, by taking down the USDA Animal & Plant Health Inspection Service web site that allowed the law to be enforced.
Already contested in at least two lawsuits filed by animal advocacy organizations, with another lawsuit reportedly pending, the USDA-APHIS web site takedown inhibits humane law-related investigation and enforcement at every level, throughout the United States. Thousands of Animal Welfare Act and Horse Protection Act enforcement records are now accessible only by filing Freedom of Information Act requests, a notoriously slow process.
(See Is Protect the Harvest behind USDA purge of Animal Welfare Act data?, Lawyers line up to sue USDA-APHIS over law enforcement info deletions, USDA-APHIS reposts less than 1% of deleted law enforcement info, and Thumbing nose at lawsuits, USDA-APHIS hides more info.)
In Maryland, however, the anti-“puppy mill” law itself depends on the public, animal advocates, and law enforcement having access to USDA-APHIS inspection reports on dog breeders holding federal licenses to sell dogs across state lines.
“Unenforceable without federal database”
Because this information is no longer available online from USDA-APHIS, pet sellers can no longer comply with the requirement that it must be disclosed, at least as the requirement in the 2016 legislation was written.
“Animal welfare activists say the law is unenforceable without the federal database,” reported Ian Duncan for the Baltimore Sun on March 9, 2018, “and the pet industry acknowledges that making less information public doesn’t instill confidence in consumers, who are less able to vet suppliers and stores.”
Maryland state delegate Benjamin Kramer, the Montgomery County Democrat who sponsored the 2016 state law, responded to the USDA web site takedown by introducing another bill, HB 781, which will require stores selling dogs in Maryland to obtain USDA-APHIS inspection reports directly from licensed breeders.
Having already been approved by the Maryland House of Delegates, HB 781 is to receive a state senate hearing on March 30, 2017.
Myth of two-tiered inspection
The USDA-APHIS web site takedown is believed to have undercut a variety of other legislation at the state and local levels around the U.S., but other examples have yet to surface.
Meanwhile, the Maryland example spotlights a weakness in the relationship of federal and state animal welfare legislation evident for nearly 60 years, beginning with the passage of the Humane Slaughter Act of 1958, the first federal law to require any inspection of animal care and use facilities. Some states already had comparable inspection requirements. While animal advocates anticipated that this would mean two-tiered inspection, the animal use industries won regulatory amendments allowing certification of compliance by either state or federal inspectors to satisfy the requirements at both the state and federal level––even when the specific requirements of the laws might have differed.
Thus if either the state or federal inspection process failed in any way, both did, and still do.
Horse Protection Act
The Humane Slaughter Act, the Laboratory Animal Welfare Act of 1966, the Animal Welfare Act of 1970, and the Horse Protection Act of 1976 all incorporated the appearance of requiring two-tiered inspection with the reality that only one level of inspection has to take place.
The Horse Protection Act added the twist that inspection authority at walking horse shows could be delegated to walking horse exhibition industry representatives. Exhibitor resistance to federal efforts to reclaim inspection authority over the walking horse industry apparently led to the first of two rounds of Animal Welfare Act enforcement data deletions from the USDA-APHIS web site, on February 17 and February 24, respectively.
SAEN posts prosecution info
Having already joined in one of the lawsuits seeking restoration of the deleted Animal Welfare Act and Horse Protection Act enforcement data, the Ohio organization Stop Animal Exploitation Now on March 27, 2017 followed the example of Arizona activist Russ Kick (http://thememoryhole2.org/blog/aphis) by posting some Animal Welfare Act enforcement particulars.
The SAEN site, USDA Enforcement Actions, is at http://www.saenonline.org/usda-enforcement-actions-20170319.html, “contains all regulatory actions taken against the biomedical research industry during 2015 and 2016,” SAEN cofounder Michael Budkie said in a prepared statement.
“These enforcement actions include research laboratories, zoos, animal breeders, among others,” Budkie said.
$3.7 million in fines
“2016 was a banner year for enforcement actions against the biomedical research industry,” Budkie noted. “The USDA levied eight federal fines, totaling more than $3.7 million. The agency also issued 16 Official Warnings. That made 2016 the worst year the industry has ever had in terms of not complying with federal laws,” or at least in getting caught.
The case summaries posted by SAEN detail how the Los Angeles Zoo was fined $22,850 for Animal Welfare Act violations associated with the deaths or disappearances of two cotton-top tamarin monkeys, a koala, a pregnant takin (a type of Himalayan goat-like antelope) and her unborn baby; a fine of $1,000 issued to the Racine Zoo in Wisconsin for an incident in which a camel bit a three-year-old child at a camel ride concession; and a fine of $5,250 levied against Liberty Research Inc., a New York breeder of dogs and cats for laboratory use.
Liberty Research was found to have improperly transported 43 dogs in March 2014, killing two of them. According to the USDA-APHIS Citation & Notification of Penalty, “The kennels in the trailer were packed four across and two high, and the ventilation openings in the kennels were covered with filtration curtains and/or clear plastic.”
Universities of Missouri & Hawaii
The SAEN site USDA Enforcement Actions also includes the paperwork pertaining to Official Warnings issued to the University of Missouri at Columbia and the University of Hawaii.
The latter involved a case in which a sheep used in an animal science class fell ill, was treated unsuccessfully, and was euthanized three days later by gunshot followed by exsanguination, or “bleeding out.”
This would have been essentially standard procedure as prescribed by the Humane Slaughter Act if the sheep had been sent to slaughter for human consumption, or had been removed from the slaughter line at a slaughterhouse due to illness.
However, the use of the sheep in a university class meant the sheep was covered instead by the Animal Welfare Act, under which, the USDA report explained, “The approved method of euthanasia is by lethal injection of sodium pentobarbital administered by a veterinarian.”
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