USDA to issue new bird regulations

[Laura Bies]

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The USDA has reached an agreement with two organizations who sued over APHIS’s failure to issue animal welfare regulations under the Animal Welfare Act for birds not bred for use in research. That agreement, which was signed by the U.S. District Court judge in early June, calls for the agency to begin a rulemaking process within 90 days. 

Per the court order, USDA committed to:

Ø publishing a notice for listening sessions by the end of August, to take place within one year of the date of the order

Ø publishing a notice of proposed rulemaking within 18 months of publication of the notice of listening sessions

Ø publishing a final rule within a year of the publication of the notice of proposed rulemaking

Ø submitting reports on their progress in promulgating the regulation every 90 days

Background: Currently, USDA regulations exempt rats, mice, and birds from the Animal Welfare Regulations. After a lawsuit in 2000, the department agreed to change its regulations to include rats, mice, and birds. Before any regulations were promulgated, a provision in the 2002 Farm Bill codified the exclusion of rats, mice, and birds from AWA regulations. However, a typographical error in the bill means that only birds bred for use in research were excluded from AWA jurisdiction. 

In 2004, APHIS published an advance notice of public rulemaking, asking for public input about how to regulate the care and use of birds not bred for research. The agency never completed the rulemaking, and their failure to develop a rule led to the lawsuit by the Avian Welfare Coalition and the American Anti-Vivisection Society.

The OC filed comments, in response to the 2004 notice of proposed rulemaking, suggested that given the number of wild bird species, the enormous variation among species, and the lack of experience and information pertaining to the keeping of most species in captivity that regulations would necessarily have to be very flexible and nonspecific. We also noted that inspection of field sites was unrealistic at best given that the USDA does not have enough inspectors, much less inspectors knowledgeable in field biology, to inspect field sites and that it would be unreasonable to expect wildlife biologists to bear the costs of such inspections.

Any regulations promulgated by USDA may pertain only to birds studied in captivity, as existing regulations pertaining to other taxa cover topics such as housing, feeding, water, sanitation, transit, and handling.

NOTE: The Ornithological Council believes strongly that birds, both wild and captive-bred, should be treated humanely, both in the laboratory and in research conducted in the wild. It is for this reason that we publish the peer-reviewed Guidelines to the Use of Wild Birds in Research. Our objection to the possible inclusion of birds in the Animal Welfare Act regulations is based solely on the fact that it is likely to impose additional burdens on research without producing an improvement in the humane treatment of birds, because, as explained above, this research is already regulated under the Health Research Extension Act of 1985, which makes the Animal Act applicable to all vertebrates. We object only to duplicative and potentially conflicting sets of regulations and burdensome procedural compliance, without contributing to the humane treatment of birds in research.

UPDATE: Listening sessions announced

From APHIS:

 

The United States Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) will hold three virtual listening sessions to gather information to assist in the development of regulations that will ensure the humane care and treatment of birds not bred for use in research, consistent with the Animal Welfare Act (AWA).

The virtual listening sessions will be held:

Tuesday, September 29, 2020 at 11:00 a.m. Eastern Daylight Time (EDT);

Wednesday, October 7, 2020 at 2:00 p.m. EDT; and

Thursday, October 15, 2020 at 5:00 p.m. EDT. 

The AWA authorizes the regulation of birds not bred for use in research and a January 2020 U.S. Circuit Court of Appeals opinion provided a timeline for APHIS to promulgate regulations and standards on their humane care and treatment. Before we propose regulations and standards for regulating such birds, we believe it is important to seek public input from stakeholders and other interested people.

In order to develop regulations for birds that support both stakeholder needs and animal welfare, we will seek input on the following questions during each of the listening sessions: 

Are there appropriate performance-based standards we could establish across a wide variety of species of birds?  Can we use classes of birds to set performance-based standards appropriate for the class?  If so, what might these classes look like?

How do bird breeders avoid interfering with nesting and breeding or other biological activities of birds?   How can we ensure that housing, feeding, or inspection requirements do not interfere with these activities?

Should we revise or add exemptions for certain dealers, exhibitors, operators of auction sales, and carriers and intermediate handlers of birds not bred for use in research?  If so, what should those exemptions be? Please provide supporting data if possible.  

Are there thresholds beyond which an entity should not be required to be licensed? For example, we are aware that there are many entities who breed small numbers of birds; if we should exempt those entities, what exemption criteria should we use?

Are there certain species which should be exempt?

To register for the listening sessions and learn more about the comment process, please visit: https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/aw-news/bird-listening-sessions.