Why the USDA cannot effectively enforce the Animal Welfare Act

The USDA Animal & Plant Health Inspection Service was designed to fail

            WASHINGTON D.C.–– Responsible for federal Animal Welfare Act enforcement,  such as it is,  the Animal & Plant Health Inspection Service of the U.S. Department of Agriculture [USDA-APHIS] on May 20,  2022 got a public butt-kicking from National Geographic writer Rachel Fobar.

The Fobar butt-kicking was followed by butt-kickings from an array of animal advocacy organizations,  politicians,  pundits,  and––indirectly––U.S. district judge Norman Moon,  who ordered the laboratory animal supply company Envigo to “immediately cease breeding, selling, or otherwise dealing in beagles” until it complies with the Animal Welfare Act.

The many egregious Animal Welfare Act violations by Envigo that the judge cited,  “and dozens more,”  Fobar wrote,  were documented by APHIS,  but APHIS  “neither confiscated any dogs nor suspended or revoked” the Envigo license.

Longtime targets of activism

“In early May 2022,”  Fobar recounted,  “National Geographic approached the USDA for comment about the facility’s history of violations and ongoing welfare problems.  On May 18,  2022,  authorities from the USDA and the Department of Justice confiscated 145 dogs in need of immediate medical care from Envigo’s facility in Cumberland, Virginia,  according to a complaint filed the next day by the Department of Justice in federal court.”

Fobar credited the Humane Society of the U.S. with assisting in the impoundments and credited an undercover investigation by People for the Ethical Treatment of Animals with bringing conditions at the Envigo kennels to light.

Not mentioned was that Showing Animals Respect & Kindness [SHARK] droned the Envigo facility several times,  and that it was SHARK video of the caged beagles that was extensively aired by mainstream media both in 2017 and earlier in 2022.

USDA records,  Fobar said,  “show that Huntingdon Life Sciences,  which later merged with Harlan Labs to form Envigo,  has had [Animal Welfare Act] violations going back to the late 1990s.”

Both Huntingdon Life Sciences and Harlan Labs had been targets of animal advocacy protest for decades.

“A pattern of USDA failure”

Fobar noted “a pattern of USDA failure to take action over animal welfare violations during the past several years, marked by a 90% drop in enforcement actions against licensed animal facilities between 2015 and 2020,”  mostly coinciding with the tenure of Sonny Perdue,  who was Agriculture Secretary throughout the Donald Trump presidency.

Animal Welfare Act enforcement picked up after the Joe Biden administration moved into the White House.

“In October 2021,”  Fobar acknowledged,  APHIS “revoked the license of Moulton Chinchilla Ranch in Minnesota after citing it for more than a hundred violations dating back to 2013.  Less than a month later, the USDA revoked the license of Iowa dog breeder Daniel Gingerich,”  another multi-year Animal Welfare Act violator.

But “more than 300 puppies died at Envigo’s Cumberland branch between January 1 and July 20, 2021”  Fobar charged,  and the deaths were known to APHIS,  “Yet for months,  the department failed to take any action.

“Déjà vu all over again”

Much of the current criticism of APHIS is,  in the words of former New York Yankees catcher Yogi Berra,  “déjà vu all over again,”  reflecting APHIS’ status from inception as an orphan agency,  at odds with the focal purpose of the USDA,  and with internal conflicts inherent within the mission statements of the eight APHIS divisions.

New Farm Bills,  introduced at five-year intervals,  inevitably bring Congressional policy review.  Members of Congress beholden to animal use industries that employ many of their constituents typically make APHIS a target of attempted budget cuts.

Relatively few members of Congress come under constituent pressure to increase the APHIS budget.  Animal advocacy campaigns tend to focus on further expanding the Animal Welfare Act mandate,  for instance to cover use of rats,  mice,  and birds in biomedical research,  while frequently pointing out APHIS failures to enforce the Animal Welfare Act as it stands.

Those failures have since 1991 been repeatedly pointed out by APHIS internal audits.

1995 audit reads like yesterday

James R. Ebbitt,  then assistant inspector general for audit,  on January 5,  1995 issued an APHIS audit report that might have been written yesterday.

Ebbitt pointed out then,  27 years ago,  that APHIS does not have the authority, under current legislation, to effectively enforce the Animal Welfare Act against animal dealers and research facilities.

For instance,  Ebbitt charged,  APHIS cannot terminate or refuse to renew licenses or registrations in cases where serious or repeat violations occur,  as at Envigo.  Although APHIS does technically have such authority,  it cannot revoke registrations or suspend operators without a lengthy administrative hearing process, which can be prolonged for up to three years,  during which the operator can continue to commit the violations for which the facility was cited.

Thus, Ebbitt said,  “Our audit disclosed 28 instances in the Northeast and Southeast sectors in which APHIS had renewed licenses or registrations of facilities which were in direct violation of the Animal Welfare Act, thereby potentially jeopardizing the health and well-being of animals.”

Fines treated as “costs of doing business”

Further, Ebbitt wrote,  “APHIS cannot assess monetary penalties for violations unless the violator agrees to pay them,  and the penalties are often so low that violators regard them as merely part of the cost of doing business.”

The animal advocacy organization Stop Animal Exploitation Now (SAEN) has subsequently focused on lobbying for maximum fines to be imposed on Animal Welfare Act violators,  with some success,  but to paraphrase Ebbitt,  the penalties are often still “so low that violators regard them as merely part of the cost of doing business.”

The underlying problem remains––as Ebbitt observed––that Animal Welfare Act violators are typically still allowed to continue doing business,  no matter how egregious the offense.

“We identified several instances,”  wrote Ebbitt,  “in which facilities continued to commit violations even after the violations had been identified by APHIS.  In other instances,  facilities were licensed up to a year before they were actually inspected and found to be substandard.”

Institutional Animal Care & Use Committees allowed to goof off

In addition, Ebbitt reported,  “APHIS inspections at research facilities did not sufficiently cover the activities of the Institutional Animal Care & Use Committees, self-policing bodies established under the Animal Welfare Act to ensure that animals are cared for and that unnecessary research is avoided.

Ebbitt recommended that the Animal Welfare Act be amended to allow APHIS to revoke or withhold renewals of licenses and registrations;  require on-site inspection prior to licensing;  increase the amounts of fines and make a more aggressive effort to collect them; increase the accountability requirements of Institutional Animal Care & Use Committees; and automatically suspend the licenses of dealers who bar APHIS inspectors from their property.

Very little of this––if any––has been accomplished.

Penalties “reduced by an average of 86%” from the max

A 2005 USDA Office of Inspector General report confirmed and restated all of Ebbitt’s conclusions,  further noting “failure on the part of the USDA’s Veterinary Medical Officers to ensure that research facilities provided them with basic data on themselves such as ‘the number of animals used in research’ and the number of ‘unexpected animal deaths.’”

A 2014 Office of the Inspector General audit hit the same points yet again,  and found that penalties for Animal Welfare Act violations “were reduced by an average of 86% from [the] authorized maximum penalty per violation.

APHIS pledged to do better,  but on February 4,  2017 took down the web site that had allowed the public,  animal advocates,  and news media to monitor Animal Welfare Act inspection reports and enforcement actions.

(See Animal labs get free pass on inspections; AV groups mostly don’t notice,  and Thumbing nose at lawsuits, USDA-APHIS hides more info.)

APHIS was shtupped from the schtart

APHIS on April 2,  2022 celebrated a 50th anniversary,  but the party was brief and little noted,  either by media or by the legions of APHIS critics,  both animal advocates and within the animal use industries.

Neither did APHIS ever enjoy much a honeymoon.

USDA-APHIS was created in 1972 by Earl Butz,  then U.S. Secretary of Agriculture,  as a shotgun wedding of a reluctant bride,  Animal & Plant Health Services,  with what originally were three separate agencies within three different federal departments.

Animal & Plant Services had been created in 1971,  just a year before,  specifically to enforce the Animal Welfare Act.

But enforcing the Animal Welfare Act was never a priority for Butz (1909-2008),  who is remembered today for turning USDA policies away from supporting small-scale family farmers,  toward favoring corporate agribusiness.

Earl Butz didn’t want to do law enforcement

The Laboratory Animal Welfare Act,  passed by Congress in 1966,  had been expanded by the 1970 Horse Protection Act and the 1970 amendments that formed the Animal Welfare Act of today.

As of 1971,  the USDA was to supervise any use of warm-blooded animals in either research,  exhibition,  or other entertainment.

None of this had much of anything directly to do with promoting U.S. agriculture,  the original and still primary mission of the USDA.

All of it,  though,  involved law enforcement.

Butz,  a Richard Nixon appointee who favored deregulation,  did not want to reinforce the USDA role in law enforcement.

Put Animal Welfare Act enforcement under meat inspection

The USDA already housed the descendants of three other law enforcement agencies.  The Office of Entomologist was formed in 1854 under the Agricultural Section of the U.S. Patent Office.  The Cattle Commission was organized in 1881 under the Department of the Treasury.  The Federal Horticultural Board,  part of the USDA from the beginning,  dated to 1912.

All three of these other law enforcement agencies had been subsumed by the then-newly created Agricultural Research Service in 1953.

Butz put Animal & Plant Services together with the Agricultural Research Service,  adding the much larger meat and poultry inspection divisions of the Consumer & Marketing Service to the mix to create APHIS.

This ensured that enforcing the Animal Welfare Act would never be the top priority for the agency.

Wildlife Services

The APHIS meat and poultry inspection role was transferred to the newly created Food Safety Inspection Service in 1977,  under the Jimmy Carter administration,  but animal use industry influence within APHIS was reinforced in 1985 when the Ronald Reagan administration transferred the Animal Damage Control program from the U.S. Fish & Wildlife Services to APHIS.

Animal Damage Control was renamed Wildlife Services by the Bill Clinton administration in 1997.

APHIS today includes eight divisions:  Animal Health;  Animal Welfare;  Biotechnology;  Foreign Service (focused on maintaining inspection and quarantine services in 27 nations that do substantial agricultural commerce with the U.S.);  Business, Management, & Administration;  Information Technology;  Plant Health;  and Wildlife Services.

Bombing depleted staff

Understaffing,  a perpetual problem for APHIS from the debut of the agency,  was accentuated by the April 19,  1995 bombing of the Alfred P. Murrah building in Oklahoma City by right-wing terrorist Timothy McVeigh.

Seven of the 167 people killed by McVeigh’s truck bomb were APHIS personnel, including Richard Cummins, 56, senior investigator assigned to the Midwest Stolen Dog Task Force and a 30-year veteran of the department, who left behind a wife, two daughters, and a son.

Three more APHIS staffers were seriously hurt. Two escaped with only minor injuries, after being marooned on the seventh floor of the shaky ruins for most of the day.

Three staffers were out of the office when the bomb went off.

 9/11 depleted staff again

APHIS had barely recovered from the loss of nearly 10% of the Animal Welfare Act inspection force when in 2003 the George W. Bush administration transferred more than 2,000 APHIS agricultural border inspectors to the U.S. Customs & Border Protection unit within the just created U.S. Department of Homeland Security.

As APHIS reassigned personnel,  including veterinarians,  to fill the gaps left by the transfers,  Animal Welfare Act enforcement was again stretched thin.

Going to Kansas City

Essentially the same thing happened again in June 2019 when Sonny Perdue,  the Trump administration Agriculture Secretary,  abruptly moved the USDA Economic Research Service and the National Institute of Food & Agriculture to Kansas City.

About 550 USDA employees were ordered to relocate,  including 250 scientists.

Observed Federal News Network reported Nicole Ogrysko on February 8, 2021,  “Many employees at the Economic Research Service and the National Institute of Food & Agriculture — between 40% and 60%, respectively — left,  data from USDA shows,”  leaving both agencies “operating with roughly 30% fewer employees today than they were before the USDA relocation,”  despite intensive recruitment.

At least some of the positions left vacant were filled by transfers from Animal Welfare Act enforcement.

Joan Arnoldi, DVM

Meanwhile,  APHIS administrator Kevin Shea on May 22,  2022 announced the death of Joan Arnoldi,  whom Shea remembered as “APHIS’ first female deputy administrator and chief veterinary officer of the United States.”

Arnoldi “joined APHIS in 1988 to lead the Regulatory Enforcement & Animal Care program, the predecessor to our Investigative & Enforcement Services and Animal Care programs,”  Shea continued.

“Dr. Arnoldi went on to lead the National Veterinary Services Laboratories in Ames, Iowa,  for three years,  then became Associate Veterinary Services Deputy Administrator for a short time before she became the Veterinary Deputy Administrator and chief veterinary officer.

“She then went on to join the Administrator’s Office as an associate administrator,”  Shea said,   “where she remained until she retired from APHIS.”

But Shea omitted a chapter.  Arnoldi was transferred from her role as chief veterinary officer,  the American Horse Protection Association charged in early 1993,  after she tried to enforce the often circumvented Horse Protection Act to the letter.

During the next-to-last week of the George H. Bush administration,  the American Horse Protection Association explained,  the USDA “caved in to industry pressure” in relaxing the inspection rules for Tennessee walking horses, and at the same time kicked Arnoldi upstairs into an office job,  where she could smell the horse manure but not see the horses.

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