USDA proposes to cover birds under the Animal Welfare Act––sort of

(Beth Clifton collage)

Disease outbreaks afflicting poultry producers lend regulatory urgency to protecting birds––some birds,  anyhow––that 50 years of activism did not

WASHINGTON D.C.––The worst outbreak of H5N1 avian influenza on record,  ravaging European flocks both wild and domestic since 2020,  now killing birds by the million in poultry barns,  especially in the upper Midwest,  may soon help to accomplish for U.S. captive-raised birds––some of them,  anyhow––what more than 50 years of animal welfare advocacy has not.

(See H5N1 avian flu: bird culls, food prices, Ukraine war, & cockfighting converge.)

            Congress in 1970 recognized that birds are animals,  extending the U.S. Animal Welfare Act to cover all warm-blooded species used,  or intended for use,  “for research, testing, experimentation, or exhibition purposes, or as a pet.”  But birds were exempted from the Animal Welfare Act enforcement regulations.

Fifty-two years later,  the USDA Animal & Plant Health Inspection Service is at last close to covering birds in the enforcement regulations.  Some birds,  that is.

(Beth Clifton collage)

How to comment

Published in the February 22,  2022 Federal Register,  the proposed new regulations will “establish standards governing the humane handling,  care,  treatment,  and transportation of birds,”  albeit with extensive exemptions for species defined as “poultry,”  or raised in flocks including four or fewer breeding females whose offspring are sold for less than $500 per year.

Currently scheduled to take effect on January 1,  2023,  the proposed new regulations remain open for public comment only until May 25,  2022,  at www.regulations.gov.

            Instructed Humane Society of the U.S. president Kitty Block and Humane Society Legislative Fund president Sara Amundson on April 6,  2022,  for people wishing to make a comment,  “Enter APHIS-2020-0068 in the ‘Search’ field.  Select the ‘Documents’ tab,  then select the ‘Comment’ button in the list of documents.

The full text of the proposed new regulations,  with explanations of the USDA-APHIS thinking in each instance,  may be accessed at https://www.federalregister.gov/documents/2022/02/22/2022-03565/standards-for-birds-not-bred-for-use-in-research-under-the-animal-welfare-act

(Beth Clifton collage)

Avian flu amends posture of chicken industry

The proposed new regulations make no specific mention of high pathogenic avian flu,  of the H5N1 variety or any other.

Increasing recognition,  however,  that exotic bird breeders,  cockfighters,  pigeon racers,  bird exhibitors,  and others engaged in bird-related commerce are involved in spreading outbreaks of H5N1 and Newcastle,  a deadly fungal disease,  appears to be amending the attitude of the chicken industry from adamant opposition to any federal regulation of birds to favoring regulation of everyone else whose activities might menace chicken barns.

Explains the USDA Animal & Plant Health Inspection Service (APHIS) regulatory preamble,  “Based on our experience with animal welfare issues in the currently regulated community, we recognize that there are common challenges to maintaining humane conditions for animals—regardless of species—pertaining to shelter,  health,  husbandry,  transport, and related needs.  The standards we are proposing for birds include requirements that ensure animal welfare in the same areas of need.

Western lowland gorillas.
(Beth Clifton collage)

Definition of “bird”

“We would define the term bird as any members of the class Aves,  excluding eggs.  We consider a bird to no longer be an egg when the bird is fully separated from the eggshell,”  USDA-APHIS says.

The regulatory proposals,  USDA-APHIS details,  are based in part on “10,330 written comments”  received during listening sessions held in 2020 and 2021 from

• Breeders and fanciers of finches,  canaries,  parrots,  cockatiels,  and other pet and show birds;

• Raptor breeders, conservationists,  and hobbyists;

• Exotic poultry hobbyists;

• Owners and breeders of show and racing pigeons;

• National and regional animal welfare organizations;

• Organizations representing zoos,  shelters,  and rescues;  avian veterinarians,  ornithologists,  and aviculturists;

• Organizations promoting the conservation of waterfowl and wild birds;

•  A federal government agency (the U.S. Fish & Wildlife Service);

•  and members of the public.

(Beth Clifton photo)

Perch rules

The gist of all of that was that each sector potentially subject to regulation offered vehement arguments as to why it should be exempted,  especially from any requirement specific enough to be easily enforced.

The most specific welfare standard included in the USDA-APHIS proposal appears to be “an environmental enrichment standard for birds requiring that perches and other objects provided to enrich a bird’s environment be species-appropriate and designed,  constructed,  and maintained so as to prevent harm to the bird.”

However,  the proposal continues,  “Businesses may use their own experience and knowledge with the species in question to determine the composition of the perches and other objects,  their size and location,  and other relevant considerations,  so long as they are meeting the proposed standard.”

(Beth Clifton photo)

Birds constitute a uniquely diverse class

Many persons offering comments,  USDA-APHIS acknowledges,  “noted the great number of bird species and the highly diverse care and husbandry needs of each,  and remarked on the challenge of establishing a single set of standards that could accommodate the scope of these needs.

“We acknowledge the concerns of these commenters,”  USDA-APHIS concedes,  “and agree that birds constitute a uniquely diverse class,  which is why we consider a performance-based,  flexible approach to standards for birds especially important.”

Further,  USDA-APHIS proposes to require “that the space in all primary enclosures housing birds be adequate,”  a term left only loosely defined,  in recognition that some birds need much more protection from the elements than other birds would want,  “and allow for normal postural and social adjustments,  such as dust-bathing and foraging,  with adequate freedom of movement and freedom to escape from aggression demonstrated by other animals in the enclosure,  according to the program of veterinary care developed, documented in writing, and signed by the attending veterinarian.”

(Beth Clifton collage)

Room to fly not required

But the USDA-APHIS regulatory proposal hedges that,  “While we acknowledge the desire by many commenters that sufficient enclosure space be available for birds to fly,  birds can be in good health and maintained humanely in accordance with the [Animal Welfare] Act without such a requirement.”

Concerning flooring,  a major welfare issue both for the species to be regulated and for exempted poultry species,  the USDA-APHIS regulatory proposal notes,  “One commenter stated that wire flooring is harmful to the feet of many birds and proposed that we set standards requiring safe,  non-toxic substrate (newspaper,  towels,  litter,  straw,  etc.) for the species being housed.  We include in this proposal a performance-based requirement that floors of primary enclosures be constructed in a manner that protects the birds’ feet and legs from injury,  which addresses issues of harmful flooring regardless of composition,  as well as a requirement that substrate be safe and non-toxic to the birds being housed.”

Roger Tory Peterson, 1908-1996, who became editor and chief illustrator of more than 50 field guides, popularized birding with a camera instead of a gun.

No restraint on handling

Continues the USDA-APHIS regulatory proposal,  “Some commenters asked that APHIS create standards that restrict or prohibit public contact and interaction with exhibited birds.  One commenter stated that exhibitors allow dangerous birds to be too close to the public. Others opined that direct contact programs pose a dramatically increased risk of zoonotic disease transmission between humans and animals.  A commenter cited research indicating that hand-rearing of parrots and other birds can contribute to the development of aberrant behaviors such as stereotypy and feather plucking.

“On the other hand, a commenter stated that many birds desire and will initiate interaction with their owners.  Another commenter was concerned that breeders would be restricted from hand-rearing and handling young birds, noting that such activities are a necessary part of taming. We are not proposing regulations that would restrict breeders from handling their birds humanely.”

(Beth Clifton collage)

Pinioning,  devoicing,  beak & toe clipping

Other actual welfare standards pertaining to birds are comparably compromised.

For instance,  USDA-APHIS concedes,  “A majority of commenters asked that we establish regulations to prohibit painful physical mutilations,  including pinioning (disabling wings),  toe clipping,  devoicing,  and beak alterations.  A commenter recommended that when beak trimming is done for corrective purposes, it should be performed by a qualified avian veterinarian, and clipping or pinioning a bird’s wings to prevent flight should be prohibited except to address a specific health issue.

[Note:  pinioning,  often done with waterfowl,  is not to be confused with feather-trimming,  nor is toe-clipping,  common among turkey breeders,  to be confused with toenail-clipping.  Both feather-trimming and toenail-clipping are commonly done by exotic bird keepers,  but do not involve actual mutilation of wings or toes.  See Mutilated for your viewing pleasure:  Pinioning birds in English zoos.]

“We acknowledge commenter concerns over these practices,”  the USDA-APHIS regulatory proposal says,  passing the buck,  “but also acknowledge,  as several commenters did themselves,  that there can sometimes be health-based reasons for the practices.  We encourage additional comments that address the concerns raised in light of animal welfare.”

(Beth Clifton collage)

Bird transport & record-keeping

The USDA-APHIS regulatory proposal is stricter concerning bird transportation,  which involves risk of disease transmission:  “Under the standards we propose,  carriers and intermediate handlers would not be permitted to accept unweaned birds for transport unless transport instructions are specified as a part of the program of veterinary care.”

A proposed extension of the existing Animal Welfare Act record-keeping requirements to “persons engaging in AWA-covered activities involving birds” makes clear that while USDA-APHIS is not prepared to take a hard line in most instances where bird welfare is concerned,  the agency considers “an accounting of each covered animal important for the purposes of ensuring adequate health and welfare,  even for high-volume produced birds.

Newly hatched chick and ortolan bunting.
(Beth Clifton collage)

Identification

“If,  for example,  an individual bird moved to or from a premises is diagnosed with a serious,  communicable disease,”  USDA-APHIS explains,  “a record of that bird’s movement is necessary to protect other birds from potential exposure and harm.”

The identification requirement may simultaneously address the major chicken industry concern about other branches of bird commerce,  and occasion squawking because the same reasoning could be applied to movements of chickens from hatcheries to layer hen and “broiler” barns.

How exactly are birds to be identified?

“In these proposed regulations,”  USDA-APHIS says,  “we include identification standards for birds that allow for flexibility in meeting the requirements,  including attaching information to primary enclosures identifying each bird housed within,  using leg and wing bands for identifying birds,  and employing microchips.  We believe that these methods are the safest and most acceptable means of identifying birds humanely.”

Former Pennsylvania judge Adolph Joseph Antanavage shooting pigeons. (SHARK photo)

Exemptions for cockfighters & pigeon shooters

A revision of the Animal Welfare Act definition of “exhibitor” in the USDA-APHIS regulatory proposal would create colossal gaps in coverage certain to be exploited by cockfighters and pigeon shooters,  among others.

“Currently,”  USDA-APHIS explains,  in awkward legalistic grammar,  “an exhibitor is defined as ‘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 [of Agriculture].

“This term includes carnivals,  circuses,  animal acts,  zoos, and educational exhibits,  exhibiting such animals whether operated for profit or not.”

(Beth Clifton collage)

The devil is in the details

“This term excludes retail pet stores,  horse and dog races,  an owner of a common, domesticated household pet who derives less than a substantial portion of income from a nonprimary source (as determined by the Secretary) for exhibiting an animal that exclusively resides at the residence of the pet owner,  organizations sponsoring and all persons participating in State and country fairs,  livestock shows,  rodeos,  field trials,  coursing events,  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.”

Continues the USDA-APHIS regulatory proposal,  “Like horse and dog races and purebred dog and cat shows, we consider pigeon races and bird fancier shows to be exhibitions traditionally intended to advance agricultural arts and sciences.  Therefore,  we would amend the definition of exhibitor by adding pigeon races and bird fancier shows to the list of exhibitions that are excluded from coverage.  In addition, for clarity,  we would add free-flighted bird shows as an example of a type of animal act that is included under the definition of exhibitor.”

Scene of Rancho Paraiso gamecock exhibition in Mexico.  See 20 murdered at U.S.-owned Mexican cockpit.  (Beth Clifton collage)

“Bird fancier shows”

Cockfighters already customarily promote their events as “bird fancier shows.”  Pigeon shoots have not yet been promoted as a form of pigeon racing perhaps only because there has until now been no regulatory incentive for doing so.

The exclusion of gamecock exhibitions from USDA-APHIS inspection requirements actually sets up a conflict between the proposed new regulations and the USDA-APHIS mandate to investigate and prosecute cockfighting,  established under the Animal Welfare Act by the Animal Fighting Prohibition Enforcement Act of 2007 and reinforced by amendments in 2013 and 2018.

What the proposed new regulations mean,  in practical terms,  is that USDA-APHIS could ignore gamecock exhibitions on the pretense that they are legal,  never mind the cockfighting-related activity that they help to facilitate and promote.

(Beth Clifton collage)

Cockfighters & pigeon shooters also protected under “poultry” exclusion

The proposed new regulations also give pigeon shooters a free pass for keeping pigeons starved,  dehydrated,  and in darkness,  often for many days,  before they are released to be shot.

As the proposed new regulations are written,  though,  both gamecocks and pigeons captured to be shot are categorically excluded from protection anyhow.

This is through several proposed “changes to the definition of farm animal” which USDA-APHIS says are “to ensure appropriate coverage for birds.”

(Beth Clifton collage)

More than 99% of birds in human hands left unprotected

What this really means is the total exclusion of “poultry,”  as very broadly defined,  from any Animal Welfare Act protection whatever.

Poultry,  for Animal Welfare Act enforcement purposes,  “would be defined as any species of chickens,  turkeys,  swans,  partridges,  guinea fowl,  and pea fowl;  ducks,  geese,  pigeons,  and doves;  grouse,  pheasants,  and quail,”  and ratites,  namely ostriches,  emus,  rheas,  and cassowaries,  when kept to produce feathers,  eggs,  meat,  oil,  and leather.”

In other words,  the USDA-APHIS regulatory proposal starts out by excluding from coverage more than 99% of all the birds raised in commerce.

Humane Society of the U.S. representative Dave Pauli & friend.

But some birds will be recognized as “pets”

By way of trade-off,  the USDA-APHIS regulatory proposal says, “We are proposing to include birds under the definition of pet animal,”  a category  receiving Animal Welfare Act protection,  to “include but not be limited to parrots,  canaries,  cockatiels,  lovebirds, and budgerigar parakeets.

“Although there are too many bird species that exist in the United States and are kept as pets to list under the definition,”  USDA-APHIS explains,  “we propose to list these particular birds because they constitute the majority of birds bought and sold as pets in the United States and are thus a good illustrative example of what constitutes a pet bird.”

(Beth Clifton collage)

HSUS:  “This is a good proposal”

Blogged Amundson and Block,  “This is a good proposal, but we feel strongly that the USDA should include additional protections in the final rule.

“It is critical that captive birds be able to express natural behaviors such as flying,”  Amundson and Block wrote,  “so there ought to be a limit on the number of hours they can be tethered,  along with a basic requirement for flight space in facilities.

“Moreover, just as the USDA has prohibited declawing and defanging of certain species,”  Amundson and Block said,  “we hold the view that the agency should prohibit painful mutilations such as pinioning (wing clipping),  toe clipping,  surgical devoicing and beak alterations.  Physical alterations for cosmetic or behavioral reasons, not focused on the improvement of animal well-being, should be illegal.

(Beth Clifton collage)

“We also believe,”  Amundson and Block offered,  that USDA-APHIS “should develop specific regulations to restrict public contact with birds to help prevent injury to a person or animal, and since birds in the pet trade are wild animals,  pet shops selling them should be licensed.”

Amundson and Block,  however,  said nothing about the language likely to be exploited by cockfighters and pigeon shooters,  or about the whole premise that 99%-plus of all captive birds are excluded from any protection simply because  they,  and/or their eggs,  are raised to be eaten.

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