A virulent form of Newcastle disease (vND), “a contagious and fatal viral disease affecting the respiratory, nervous and digestive systems of birds and poultry,” as described on USDA’s Virulent Newcastle Disease webpage has been confirmed in 93 cases in backyard exhibition chickens and turkeys by USDA since May 18, 2018.

The last outbreak of vND started in 2002 infecting 22 commercial premises and hundreds of backyard flocks, at a cost of over $180 million dollars to eradicate the outbreak, officially ending on March 26, 2003.  That outbreak, which started in California spread to four other states, but the majority of affected premises were in California.

Since May of this year, USDA has been regularly updating its stakeholders with information about the current outbreak, which to date, has not infected commercial poultry premises.

USDA reports that vND (previously called Exotic Newcastle Disease or END) “is one of the most infectious diseases of poultry in the world and is so deadly that many birds die without showing any signs of disease. A death rate of almost 100 percent can occur in unvaccinated poultry flocks. It can infect and cause death even in vaccinated birds.”

There are “three simple steps” USDA describes to prevent the disease from spreading to other flocks including:

Washing hands and scrubbing boots before and after entering an area with birds;

Cleaning and disinfecting tires and equipment before moving them off the property; and

Isolating any birds returning from shows for 30 days before placing them with the rest of the flock.

Bird owners are directed to contact state and federal animal health officials if their birds exhibit the following clinical signs:

Sudden death and increased death loss in flock

Sneezing, gasping for air, nasal discharge, coughing

Greenish, watery diarrhea

Decreased activity, tremors, drooping wings, twisting of head and neck, circling, complete stiffness

Swelling around the eyes and neck.

USDA also amended Veterinary Services Memorandum No. 800103 “Reissuance of Product Licenses for Autogenous Products and Guidance Concerning Restriction on the Production and Use of Veterinary Biologics,” seemingly related to concerns about the use of some virulent viruses in autogenous vaccines.

VS Memorandum 800.103 was signed on July 18, 2018, and cancels VS Memorandum 800.103 dated May 28, 2002. This memorandum provides guidance to licensees, permittees, and applicants concerning Animal and Plant Health Inspection Service’s restrictions on the production, importation, distribution, and use of autogenous biologics. This memorandum is effective immediately.

As described in Memorandum 800.103:  

APHIS restricts the importation and distribution of veterinary biologics from countries known to have exotic diseases, including, but not limited to, foot-and-mouth disease, rinderpest, highly pathogenic avian influenza, swine vesicular disease, Newcastle disease, African swine fever, and bovine spongiform encephalopathy if, in the opinion of APHIS, such products may endanger domestic animals, livestock, or poultry.

In addition, APHIS restricts the production and distribution of veterinary biologics, including, but not limited to, Brucella Abortus Vaccine, Vesicular Stomatitis Vaccine, and certain diagnostic products used in cooperative State/Federal/industry animal disease control and eradication programs, if it determines such products may interfere with disease surveillance and/or control and eradication efforts.

The instant amendments appear to be an attempt to prevent potentially virulent virus from inclusion in autogenous vaccines (a reasonable limitation).  Therefore, field isolates intended for inclusion in such products must be tested at an APHIS-approved laboratory before such use.

Hopefully, this outbreak will be resolved soon and without infecting more backyard or commercial-raised birds.

Edgy Animal Welfare

16 Pages Posted: 24 Jul 2018

Richard L. Cupp

Pepperdine University School of Law

Date Written: July 18, 2018

Abstract

Legal animal welfare proponents should not reject out-of-hand reforms that may be celebrated by some as steps toward a radical version of animal rights. Rather, animal welfare proponents should consider the costs, risks, and benefits of all potential reforms. Some potential reforms’ risks and costs outweigh their benefits. But, both to improve animals’ welfare and to avoid irrelevance in an evolving society, legal animal welfare advocates should be willing to tolerate some costs and risks. Walking on the edge of slippery slopes is in some situations better than avoiding the slopes altogether. Connecticut’s 2016 animal advocacy statute provides an illustration of legal reform that legal animal welfare proponents should embrace even though it presents some risks of being perceived as a step toward a radical legal personhood rights paradigm.

Cupp, Richard L., Edgy Animal Welfare (July 18, 2018). Denver Law Review (Forthcoming); Pepperdine University Legal Studies Research Paper No. 2018/11. Available at SSRN: https://ssrn.com/abstract=3216112

NOTE:  Law review articles available for free download at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=543387

I have previously described concerns about the lack of validation of genetic tests to refute the pedigree registration status of purebred dogs.  As several courts have held, genetic testing is currently not dispositive of pedigree registration status.  See, e.g., Sandra Shines v. Furry Babies Stratford Square, Inc., No. 13-3592, slip op. at 9 (Ill. 18th Jud. Cir. Jan. 22, 2014) (finding DNA test results unreliable to support plaintiff’s claim that the Cocker spaniel in dispute was a mixed breed).

It looks like I am not the only veterinarian concerned about the injudicious use of genetic testing in animals.  As other veterinarians and scientists recently discussed in Nature’s “Pet genomics medicine runs wild:”

Genetic testing for dogs is big business.  It is too easy for companies to sell false hope, warn Lisa Moses, Steve Niemi and Elinor Karlsson.  They call for regulation.

These authors identify the following deficiencies in animal genetic testing:

  1. Weak science
  2. Lack of validation
  3. Imprecise results or interpretation
  4. Conflicts of interest

They propose the following logical five-step plan to help insure that genetic testing provides animal owners with validated, science-based and valuable information about their pets.

  1. Establish standards
  2. Create guidelines
  3. Share data
  4. Recruit tools and expertise
  5. Education counsellors

The International Partnership for Dogs (IPFD) a partnership of national kennel clubs, industry and non-profit organizations, whose mission (described here) “is to facilitate collaboration and sharing of resources to enhance the health, well-being and welfare of pedigreed dogs and all dogs worldwide” congratulated the authors on their commentary and noted that to their own initiative – the Harmonization of Genetic Testing for Dogs (HGTD) – was engaged in the development of oversight of these tools and emphasized “the phenomenal potential for genetic testing to support health, well-being and welfare in dogs, as well as aspects of human-dog interactions.”

The goal of HGTD is reportedly to improve standardization of, and access to, robust genetic  testing to support health improvements and a sustainable future for healthy dogs.

The use of genetic tests to assist animal breeders in selecting for desired traits is nothing new.

For example, in 2006, USDA’s Agricultural Research Service was studying the use of genetic tests for “beefing” up cattle breeding programs, as reported on USDA’s website.  Even before that, as early as 1998, geneticists, including Mark F. Allan was researching the “genetic regions linking to the twinning trait” in cattle.

Marker-assisted selection will allow breeders to increase the speed and accuracy of traditional assessment methods, but its advantages extend beyond the seedstock industry. Commercial cattle producers would be able to purchase bulls with superior genetics. The desirable characteristics in the livestock would ultimately translate into better products for consumers.

Genetic testing, when used judiciously, has helped animal and human health officials understand the spread of pathogens, such as avian influenza, so that measures can be implemented to prevent or mitigate such spread.

Undoubtedly, the use of genetic testing will continue to advance, and provide benefits to both animals and humans invested in their care.

 

Originally posted on July 9, 2018 at NAIA Official Blog, reposted with permission.

More troubling news from the wild world of rescue import has been picked up by the Worms & Germs blog : a rescue dog with a known history of chronic health issues is imported into a private U.S. shelter from Thailand and tests positive for Melioidosis, a nasty zoonotic bacterial disease. This discovery leads to several potentially exposed people receiving blood tests (one showed signs of exposure, but none got sick), and ultimately the euthanasia of the dog.

Melioidosis is bad news

 

The plea for common sense from Worms & Germs author, Scott Weese (Ontario Veterinary College – University of Guelph), could have been written by us:

 

Logical importation practices are needed. How much time and expense went into shipping a paralysed dog transcontinentally from one shelter to another, when it was ultimately euthanized in the end anyway? I realize everything is done with good intentions, but thank about what could have been done for local homeless animals with the time, effort and expenses that were incurred here.

 

Dr. Weese generously labels the shelters and importers as well intentioned. But honestly, there must be a point where, when operations are carried out with such casual disregard for the health of shipped and local dogs (and adopters), where intentions can not be labeled as “good” — or at the end result is so damaging as to make intentions irrelevant.

 

Rescue importation, fueled by a lack of adoptable local dogs in many parts of the U.S. and the power of social media, has grown by leaps and bounds over the last two decades while U.S. dog import laws have not been updated since 1956. As a result, we are seeing dogs arrive here with everything from canine brucellosis, rabies, and the canine flu, to parasites and other vector-borne diseases. These are very serious issues, which is why NAIA has been working to modernize dog import laws for the last several years.

For more information, contact Patti Strand, NAIA President, at naia@naiaonline.org.

 

 

On July 1, 2018,  bill S2820 was introduced in the New Jersey Senate that would direct the NJ Department of Health to “adopt dog breeding standards; prohibit . . . dog breeding without {a] USDA license; and [require] compliance with DOH standards.”

Notably, there is no sister bill, and because of the fatal flaws in the bill, described in part below, it will hopefully be fated for a timely death to join other similarly flawed bills.

The most egregious flaw with this bill is the provision that would make it “unlawful to breed any dog . . . without the appropriate, current United States Department of Agriculture license for the breeding of a dog required pursuant to the federal ‘Animal Welfare Act,’ 7 U.S.C. s. 2131 et seq. . . . “

A USDA license for a dog breeder is only available for a breeder who qualifies for such as license, which is currently limited to a breeder with more than four breeding females.  Voluntary licensure for dog breeders with four or fewer breeding females is not available.  Congress, through the Animal Welfare Act, identified dog breeding as a commercial enterprise that effects interstate commerce whether conducted solely in state or out of state, and therefore required federal oversight.  As expressly state in the Congressional Statement of Policy:

The Congress finds that animals and activities which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this chapter is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce, in order—

(1) to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment;

(2) to assure the humane treatment of animals during transportation in commerce; and

(3) to protect the owners of animals from the theft of their animals by preventing the sale or use of animals which have been stolen.

7 U.S.C. §2131

The interstate pet market, as identified in the Animal Welfare Act, includes dealers who are breeders, wholesalers (middlemen), retail pet stores, some of which are exempted from licensure because USDA has determined that they do not require oversight through licensing since either the public sees the animals directly (pet stores and shelters who sell face to face) or they exceed the care required without licensing (breeders with 4 or fewer females).

Any State (or a political subdivision of such State) may promulgate standards in addition to those standards promulgated by the Secretary under paragraph (1) of Section 2143 of the AWA, which states “the Secretary shall promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors.”  But, a State cannot simply ban dog breeders who do not qualify for licensure under the AWA.

The other blatant error in this proposed bill is dog breeding is already regulated by the DOH in New Jersey.  N.J.S.A. 4:19-15.1 defines “kennel” as “any establishment wherein or whereon the business of boarding or selling dogs or breeding dogs for sale is carried on except a pet shop (emphasis added).

“Any person who keeps or operates or proposes to establish a kennel, a pet shop, a shelter or a pound shall apply to the clerk or other official designated to license dogs in the municipality where such establishment is located, for a license entitling him to keep or operate such establishment.”  N.J.S.A. 4:19-15.5.

There are additional statutory and regulatory requirements for such kennels, enforced by the local health department, the DOH, and the State Board of Veterinary Medical Examiners.  See, e.g., Requirements for Disease Control and Health Care Programs for New Jersey Kennels, Pet Shops, Pounds and Shelters, May 2016; see also, N.J.A.C. §§8:23A-1.1 -1.13 (Animal Facility Operation)

Therefore, the requirement for DOH to “develop standards for the appropriate breeding of dogs in commercial and residential settings” is superfluous, unnecessary and redundant.

Assemblyman Daniel R. Benson introduced a bill (A4298) that would amend “animal cruelty offenses and penalties concerning animal abandonment and failure to report injuring certain animals with a motor vehicle; increases civil penalties for certain other animal cruelty offenses.”  Like so many bills in New Jersey related to animal issues, including another misguided, S2820 to be discussed later, A4298 would subject many livestock owners, including horse owners, to liability under the law, even though their animals are properly cared for.  Many of these proposed amendments are not consistent with the requirements in the “Humane Treatment of Domestic Livestock,” (the “Humane Standards”), N.J.A.C. §§2:8-1.1 et seq. which the legislature mandated for “domestic livestock,” defined as “cattle, horses, donkeys, swine, sheep, goats, rabbits, poultry, fowl, and any other domesticated animal deemed by the State Board of Agriculture and the Department of Agriculture, in consultation with the New Jersey Agricultural Experiment Station, to be domestic livestock for such purposes.”  N.J.S.A. 4:22-16.1 (c).

The Humane Standards provide for feeding, watering, keeping, marketing and sale, and care and treatment of livestock, based on animal science and veterinary medicine.  There is a rebuttable presumption that “the raising, keeping, care, treatment, marketing, and sale of domestic livestock in accordance with the standards . . . shall not constitute a violation of any provision of this title involving alleged cruelty to, or inhumane care or treatment of, domestic livestock.”  N.J.S.A. 4:22-16.1 (b)(1).  However, when both the statute and regulations were enacted, the Humane Standards were consistent with the statutory provisions, including the definition and provisions related to “necessary care.”  If the statutory provisions of “necessary care” require care inconsistent with and in excess of those required by the Humane Standards (which would occur if A4298 became law), the rebuttable presumption may not be applicable.

This issue is compounded by three major factors:

  1. Those enforcing animal cruelty statutes often believe (erroneously) that any time an animal is injured or becomes sick, the owner or caretaker is at fault and liable under the animal cruelty statutes;
  2. Those enforcing animal cruelty statutes are often inadequately trained in animal care, particularly care involving livestock;
  3. Animal activist groups, opposed to animal use by humans, increasingly target law makers and enforcers, providing them with biased, non-scientifically sound, misleading and inaccurate information and proposed statutory language intended to ban the breeding, sale, and use of animals.

Concerns about A4298 relate largely to the amendments of the definition of “necessary care” described below:

The bill would amend the definition of “necessary care” to provide for “care sufficient to preserve the health and well-being of an animal . . . including:

(2)          open or adequate access to drinkable water of an appropriate temperature* in sufficient quantity and quality to satisfy the animal’s needs;

(3)          access to adequate protection from the weather, including access to an enclosed non-hazardous structure sufficient to protect the animal from the weather that has adequate bedding to protect against cold and dampness, and adequate protection from extreme or excessive sunlight and from overexposure to the sun, heat and other weather conditions;

(4)          veterinary care deemed necessary by a reasonably prudent person to prevent or relieve injury, neglect or disease, alleviate suffering, and maintain health; and

(5)          reasonable access to a clean and adequate exercise area.

Taken one by one, here are the concerns:

  1. What does “open” access to drinkable water mean?

Livestock, including horses, must be provided “daily access to water in sufficient quantity and quality to satisfy the animal’s physiologic needs as evidenced by the animal’s hydration status.”  N.J.A.C. 2:8-2.3.  However, animals do not require access to water 24/7, if that is what the definition of “open” access to water means.

  1. The requirement to provide water “of an appropriate temperature” is unnecessary and can lead to unfounded charges of animal cruelty.

The Humane Standards already require the provision of water of sufficient quality which “refers to the acceptability of water sources for animal consumption with response to the presence of contaminants, accessibility and quantity.  Acceptable water quality means that the water is provided in ways that minimize contamination by urine, feces and other material but is accessible to the animals.  It may be provided from natural sources or manmade containers and must be sufficient quantities to prevent dehydration.  Signs of dehydration include sunken eyes, increased capillary refill time of the gums, and/or skin that tents when pinched.  Human standards for potability are not required but there should not be contaminants present in amounts that discourage the animals from drinking adequate amounts.”  N.J.A.C. 2:8-1.2.

Adding a requirement related to the temperature of the water is unnecessary, vague and ambiguous.  Prior attempts to check water temperature have placed livestock in harm’s way.  Agents or officers of the NJSPCA used to attend 4-H fairs regularly and, going livestock pen to livestock pen, would dip their hands in water buckets to “test” the temperature.  Not only was this a completely unscientific method to measure the adequacy of hydration of animals, it presented a huge biosecurity risk through the intentional introduction of potential pathogens from bucket to bucket.

  1. The bill would also require “access to an enclosed non-hazardous structure sufficient to protect the animal from the weather that has adequate bedding to protect against cold and dampness,” a provision that is inconsistent with the Humane Standards.

Each species-based section of the Humane Standards includes provisions relating to housing requirements, which expressly does not require housing in a “non-hazardous structure.”  It does require:

(a) The animal’s environment must provide relief from the elements, such as excessive wind, excessive temperature and excessive precipitation, that result in hyperthermia or hypothermia detrimental to the animal’s health.

(b) Relief under (a) above can be accomplished with natural features of the environment including, but not limited to, trees, land windbreaks, overhangs, or other natural weather barriers or constructed shelters.  N.J.A.C. 2:8-2.4.

  1. The bill would also require animal owners to provide veterinary care deemed necessary by a reasonably prudent person to prevent or relieve injury, neglect or disease, alleviate suffering, and maintain health.

Such provisions could expose any animal owner to liability if they failed to prevent diseases for which vaccines or other preventive treatments are available, but were not administered.  This is not consistent with the basic tenors of veterinary medicine, which requires consideration of the needs of each animal, based on their risk exposure.  The American Animal Hospital Association’s Canine Vaccination Guidelines, for example, states:

Not all dogs need every vaccine. Your veterinarian will ask you questions about your dog’s lifestyle, environment, and travel to help tailor the perfect vaccination plan for him. AAHA’s Lifestyle-Based Vaccine Calculator uses factors such as whether your dog visits dog parks, groomers, competes in dog shows, swims in freshwater lakes, or lives on converted farmland to help you and your veterinarian develop your dog’s individualized vaccination plan.

There are “core” and “noncore” vaccines. Vaccinations are designated as either core, meaning they are recommended for every dog, or noncore, which means they are recommended for dogs at risk for contracting a specific disease. However, your veterinarian may reclassify a “noncore” vaccine as “core” depending on your dog’s age, lifestyle, and where you live—for instance, in a region like New England where Lyme disease is prevalent, that vaccine may be considered “core.”

  1. The bill would also require reasonable access to a clean and adequate exercise area.

This is inconsistent with provisions in the Humane Standards that permits housing in caged systems, stabling of horses, etc.

Significant amendments to A4298 and sister bill S2159 are required to allow for the continued existence of animal agriculture and other animal businesses in the State of New Jersey.

 

*Underlined text are proposed amendments.

Recent amendments governing the transportation of agricultural commodities, including livestock, aquaculture and insects, have elicited concerns from cattle, hog, sheep, horse, bee and aquaculture producers, since the time restrictions on transport without rest for the truck drivers would literally stop livestock haulers in their tracks, creating hazards for their live cargo.

These concerns were described on the webpage of the National Cattlemen’s Beef Association:

The ELD enforcement date and existing hours of service (HOS) regulations pose significant consequences for the livestock industry. Current federal law limits on-duty time to 14 hours, with a maximum drive time of 11 consecutive hours. The driver must then rest for 10 consecutive hours before returning to duty.  For the great majority of the trips made by our livestock haulers, this is simply not enough drive time to accommodate the realities of hauling live animals across the country. Research also demonstrates that repeated loading and unloading of animals creates stress, harming the livestock as well as endangering the hauler.  Unfortunately, the impending December 18, 2017 electronic logging device (ELD) enforcement date and existing hours of service (HOS) rules may force small business owners out of the marketplace while also having the unintended impact of decreasing driver safety, and jeopardizing the wellbeing of hauled animals if they can no longer be hauled by highly skilled and trained drivers/stockmen.

To address some of these “unintended consequences” the Federal Motor Carrier Safety Administration (FMCSA) recently announced the publication of a guidance document, also published as a rule (83 FR 26374, pp 26374-26377) to:

clarify the applicability of the ‘Agricultural commodity’ exception in the ‘Hours of Service (HOS) of Drivers’ regulations.  This regulatory guidance clarifies the exception with regard to: drivers operating unladen vehicles traveling either to pick up an agricultural commodity or returning from a delivery point; drivers engaged in trips beyond 150 air-miles from the source of the agricultural commodity; determining the ‘source’ of agricultural commodities under the exemptions; and how the exception applies when agricultural commodities are loaded at multiple sources during a trip.

This is the latest of several attempts to clarify the rule as it relates to the transportation of agricultural commodities, including livestock and insects, since its adoption.  Notably, the Electronic Logging Devices are not required for livestock transporters until September 2018.

FMCSA previously published guidance documents at the end of May 2018, including Agricultural Exceptions and Exemptions to the Federal Motor Carrier Safety Administration Hours of Service (HOS) and Commercial Driver’s License (CDL) Rules and Regulatory Guidance: Transportation of Agricultural Commodities including Livestock. 

“This regulatory guidance clarifies that the following operations are not subject to the Hours-of-Service Regulations while operating within 150 air-mile radius of the source of the commodity:”

Drivers operating unladen vehicles traveling either to pick up an agricultural commodity, as defined in 395.2, or returning from a delivery point; and

Drivers engaged in trips beyond 150 air-miles from the source of the agricultural commodity are not subject to the hours of service regulations until they exit the 150 air-mile radius.

The guidance also clarifies that when agricultural commodities are loaded at multiple sources during a trip only the first loading point can be considered a source, which results in an ongoing concern about how these regulations restrict livestock haulers from loading and delivering livestock without interruption.

To fix some of the unaddressed issues with the law, on June 26, 2018, as reported in a press release on Senator Deb Fischer’s (R-Neb.) website, “[a] bipartisan group of 24 senators . . . filed an amendment to the farm bill that would provide an hours of service exemption for certain agriculture transporters, including livestock haulers, which would provide greater flexibility to operators throughout the country.”

The amendment ‘would ensure that the exemption for operations within a 150 air-mile radius from the source of an agricultural commodity applies year-round and does not vary from one state to another for certain months of the year.  The exemption currently applies to the planting and harvesting period, as determined by each state.  It would also provide an additional 150 air-mile exemption on the back end of a trip, as it currently exists on the front end.’

Before time runs out, it will be important for these issues to be ironed out so livestock can be safely transported without unnecessary and stressful stops.

Sister bills S2689 and A4225 have been introduced and reported out of the Senate Committee with amendments and the Assembly Committee, respectively.  The bills would change the effective dates of some of the provisions of the law that Governor Christie signed just before leaving office that stripped law enforcement authority from the New Jersey Society for the Prevention of Cruelty to Animals and transferred it to county prosecutors.  The law also required each municipality to designate a municipal law enforcement officer within each existing police department.

As described in the bill statement:

the revised effective dates for the various sections of P.L.2017, c.331 would be as follows, listed in chronological order of when they already took effect or will take effect in the future because of this bill:

  • Section 33 (which prohibits the NJSPCA from taking certain actions with regard to the charters of county societies for the prevention of cruelty to animals, and provides that the act should not be construed to require county societies to surrender any of their assets) took effect on January 16, 2018, and would remain in effect under the bill.
  • Section 34 (which pertains to certain responsibilities of the Attorney General under the act) of P.L.2017, c.331 took effect on January 16, 2018, and would remain in effect under the bill.
  • Sections 25 (which pertains to municipal responsibilities under the act), 26 (which pertains to applications for designation as a municipal humane law enforcement officer), 27 (which pertains to continuing eligibility of former humane law enforcement officers or agents), and 28 (which pertains to county prosecutor responsibilities under the act) of P.L.2017, c.331 took effect on May 1, 2018, and would remain in effect under the bill.
  • Section 29 (which pertains to applications for designation as a humane law enforcement officer of a county society for the prevention of cruelty to animals) of P.L.2017, c.331 would take effect on August 1, 2018.
  • Section 35 (which repeals certain sections of existing law concerning the NJSPCA) of P.L.2017, c.331 would continue under this bill to take effect on August 1, 2018.
  • Sections 1 through 5 and sections 7 through 24, 30, and 31 of P.L.2017, c.331 would continue under this bill to take effect on August 1, 2018.
  • Section 6 (which pertains to the appointment of certified animal control officers) of P.L.2017, c.331 and section 32 (which pertains to county societies for the prevention of cruelty to animals) of P.L.2017, c.331 would take effect on February 1, 2019.
  • Finally, the bill, would change the date of the repeal of section 8 of P.L.1997, c.247 (C.4:19-15.16c) from August 1, 2018 to February 1, 2019.

Tim Martin, lobbyist for the NJSPCA, testified at the Senate Environment and Energy Committee on Monday, June 18, 2018, in support of the proposed extensions in the law.  The NJ Association of Counties and County Prosecutors Association were also supportive of the bill since it permits counties and municipalities to work out kinks related to training, funding, and sheltering.  All 21 counties have already named municipal humane law enforcement officers and assistant prosecutors have been named in all counties to deal with animal cruelty cases.  Curriculum has been adopted for official state law enforcement training by the New Jersey Police Training Commission, based on pre-existing training used for Animal Cruelty Investigators and NJSPCA officers.

 

The impact of USDA’s newly adopted final rule to certain exhibitors of farm animals remains unclear.

A positive result of the rule is the definition of “domesticated farm-type animals.”  Farm-type animals are defined as “animals that have historically been kept and raised on farms in the United States.”  Except for the use of the term “domesticated” this definition should be adopted by states to insure that livestock and poultry remain regulated by state and local laws even if owned as “pets” or for “companionship.”

However, the term “domesticated” should be replaced by “domestic,” since courts have held that certain dangerous and exotic animals can be “domesticated” based on the case-specific facts.  See City of Rolling Meadows v. Kyle, 494 N.E.2d 766 (Ill. App. Ct. 1986) (reversing holding that owners monkey was not a domesticated house pet); Turudic v. Stephens, 31 P.3d 465, 471 (Or. Ct. App. 2001) (concluding that “although the cougar may be more exotic than goldfish or hamsters, they are, nevertheless, indisputably family pets.”).  Unfortunately the term “domesticated” instead of “domestic” is used in existing and the amended rule.

Certain exhibitors of ‘domesticated farm-type animals’ are exempt from licensure, including: (1) those who “have a de minimis size of business based on the number of animals maintained, capability of providing adequate care and treatment of such animals, and public oversight . . .”; (2) “country fairs, livestock shows, rodeos, field trials, coursing events . . . and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary”; and (3) owners of “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.”

The amendments exclude from licensure “[a]ny person who maintains a total of eight or fewer pet animals as defined in part 1 of this subchapter, small exotic or wild mammals (such as hedgehogs, degus, spiny mice, prairie dogs, flying squirrels, jerboas, domesticated ferrets, chinchillas, and gerbils), and/or domesticated farm-type animals (such as cows, goats, pigs, sheep, llamas, and alpacas) for exhibition, and is not otherwise required to obtain a license.”

For those who maintain more than eight domesticated farm-type animals, they can also be exempt from licensure if: the animals are used or intended for use as food or fiber; for improving animal nutrition, breeding, management, or production efficiency; or for improving the quality of food or fiber,  even if those animals are exhibited.  However, that was not the holding in In re: Daniel J. Hill and Montrose Orchards, Inc., AWA Docket No. 06-0006, Chief ALJ Hillson (USDA April 18, 2007).

In this case, a Complaint was issued on January 13, 2006, by Kevin Shea, Administrator of the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture to “Respondents, Daniel J. Hill and Montrose Orchard, Inc., for operating as exhibitors under the Animal Welfare Act without obtaining the requisite license.”

The Findings of Fact, included, in relevant part:

Respondents operate a business which offers the public an opportunity to purchase apples, blueberries, Christmas trees, asparagus, pumpkins and other products. Most products are sold in the Orchard’s gift shop, and some products are also offered to the public on a self-pick basis.

Respondents display to the public a number of animals including, at various times, a pig, a cow, English fallow deer, Barbados sheep and goats. These animals were displayed in large pens. There were signs directing the public to these pens.  There were signs on some of the pens identifying the animal(s) inside.  There were food dispensing machines where members of the public could insert some money and buy food to feed the animals, and a hand washing station near the pens available for public use.

The Court rejected Respondents’ argument that it was exempt from licensure because it made less than $500 from its animal operations.  It also rejected the argument that Respondents were exempt from licensure because “the animals on display at Montrose Orchards were ultimately raised for food.”

Instead the Court held,

Respondents did operate as an exhibitor under the Animal Welfare Act.  I find that Respondents’ operations were in interstate commerce or at least affected commerce, and that the display of animals as part of an inducement to visit a commercial operation constituted the charging of compensation.  I find that the exemption for those who make less than $500 from animal operations applies to dealers, and is inapplicable to Respondents.  I find that while the animals on display at Montrose Orchards were ultimately raised for food, the fact that they were on display for extended periods of time still requires an exhibitor’s license. Finally, I impose a civil penalty of $1,000 against Respondents jointly.

Whether and to the extent that similar “exhibitors” would be considered exempt pursuant to the newly adopted rules, remains to be seen.

Perhaps further clarity from USDA-APHIS would be instructive.

 

On June 4, the regulation titled “Thresholds for De Minimis Activity and Exemptions From Licensing Under the Animal Welfare Act” which purportedly implement[s] amendments to the Animal Welfare Act (AWA), was published by USDA-APHIS, effective on the date of publication.

The regulation expands some exemptions to the licensing requirements pursuant to the AWA.  There are some unintended consequences to these expansions that may be detrimental to certain animal owners.  For example, the ever-expanding pet store sourcing bans often limit sources to USDA-licensed dog breeders—if these professional breeders are not entirely excluded.  Many exempt breeders—those who own four or fewer breeding females—would prefer to be licensed so that they can sell to pet stores.  However, because the provision that permits an exempt breeder to apply for a voluntary license was previously deleted from the regulations, these breeders have cannot obtain an USDA license.

USDA notes that the “four or fewer exemption” has been in place since 2004 (addressing a comment related to licensure of small exotic and wild animal owners), there was no discussion about the growing impact to dog “hobby” breeders, perhaps because no one submitted a relevant comment.  (There was a comment that permitting these breeders to go unlicensed created a loophole, but USDA “made no changes in response to that comment”).

If these breeders were to try to use third party certifiers to prove to the public that it complies with or exceeds standards required pursuant to the AWA, the reliance on such certification may be questioned based on USDA’s recent announcement that it “will not establish new criteria for recognizing third-party inspection and certification programs when determining the Agency’s own inspection frequency under the Animal Welfare Act (AWA).”

USDA explained:

In this case, APHIS found the vast majority of the comments we received to not be in favor of establishing new criteria for recognizing third party inspection and certification programs.  Stakeholders on all sides of the issue expressed concern about APHIS’ ability to maintain responsibility for inspections and AWA compliance should third-party inspections be taken into account when determining APHIS inspection frequencies.

APHIS will continue to use its current risk-based inspection system to determine the frequency of inspections, and will continue to promote compliance with the AWA by conducting quality inspections, offering voluntary compliance support and learning opportunities, and taking enforcement action, as appropriate.

Still, no one should be surprised if activists use USDA’s decision to support their unsubstantiated position that certain third party certifications are meaningless.

While it is understandable that USDA has adopted this rule to “allow . . . APHIS to focus its limited resources on situations that pose a higher risk to animal welfare and public safety” I hope that these exemptions do not create additional hardships for animal owners, breeders, and exhibitors.  More to follow in PART TWO.