After 20 years, the USDA has finally promulgated its Animal Welfare Act (“AWA”) regulations for birds.
The AWA covers the handling, care, treatment, and transportation of covered animals by dealers, research facilities, exhibitors, operators of auction sales, and carriers and intermediate handlers.
While birds not bred for use in research have been part of the AWA definition of “animal” and thus covered by the AWA since 2002, the USDA had not promulgated regulatory standards to cover birds until now. After waiting twenty years for these regulations, people are naturally wondering, “Who do the regulations apply to?” and “What do they require?”
We previously posted about the “Who” (https://blogs.duanemorris.com/animallawdevelopments/2023/02/22/finally-animal-welfare-act-bird-regulations-part-1-who-is-covered/?lctg=99214282) This blog post will cover the second question—What Do The Regulations Require?
Part 2: What do the AWA Bird Regulations Require?
The new bird regulations will be found in 9 C.F.R. Part 3, Subpart G, once they go into effect. They fall into three general categories:
(1) Facilities and Operating Standards;
(2) Animal Health and Husbandry Standards; and
(3) Transportation Standards
Perhaps in recognition of the huge number of bird species with their vast arrays of health and husbandry needs, the regulations are in large part performance-based rather than prescriptive—meaning that they require enclosures/food/water/transport that are “adequate” or “sufficient” or “allow for normal postural and social adjustments,” rather than requiring certain dimensions or a certain amount of food/water at particular intervals. For example, while it may make sense to require that most birds be transported in temperatures above freezing, that does not make sense as a requirement for some penguins.
Below we discuss some particularly notable standards, but encourage those covered by or interested in the regulations to review the Federal Register publication for the entirety of the text of the new regulations and USDA’s explanations of those regulations at: https://www.federalregister.gov/documents/2023/02/21/2023-03357/standards-for-birds-not-bred-for-use-in-research-under-the-animal-welfare-act
(1) Facilities and Operating Standards
These sections include standards for indoor and outdoor facilities, primary enclosures, and environmental enhancements to promote psychological well-being. 9 C.F.R. §§ 3.150-3.154.
Some notable items and USDA commentary include:
- Housing facilities must be structurally sound for the bird species, be kept in good repair, and restrict other animals that may negatively impact the birds from entering. This can include, but does not require, overhead netting. This “is meant to be a performance standard that allows persons to use generally accepted professional practices to restrict or prevent entry into the facility of harmful animals and to allow for incidental entry of benign animals.” 88 Fed. Reg. 10654, 10686.
- Facilities must have reliable sources of water and power available for adequate heating, cooling, ventilation, and lighting if necessary, but “[i]f electric power is not necessary for compliance with other provisions and does not jeopardize animal welfare and proper husbandry, it is not a requirement.” 88 Fed. Reg. 10654, 10686.
- Food and bedding must be stored off the floor and away from the walls to allow for cleaning underneath and around the supplies. 9 C.F.R. § 3.150(e).
- Temperature and humidity must be species-appropriate to provide for their health and well-being. But USDA “do[es] not expect an exact temperature and humidity figure to be determined and maintained for every species kept.” 88 Fed. Reg. 10654, 10689.
- Outdoor facilities must provide adequate shelter to protect birds from adverse weather conditions. These can be natural shade and shelter rather than constructed shelter, but in any event, must be sufficient to protect all the birds at once. 88 Fed. Reg. 10654, 10689.
- The space requirements for primary enclosures (9 C.F.R. § 3.153(b)) are performance-based standards (enclosures must allow each bird to make normal postural and social adjustments) rather than requiring certain dimensions, which makes the space regulation for birds different than the space regulations for other covered animals.
- Primary enclosure requirements do not include a flight requirement and do not prohibit tethering (though tethering must be “in accordance with current professionally accepted standards.”). 9 C.F.R. § 3.153(b)(2).
- Dealers, exhibitors, and research facilities must develop document, and follow a species-appropriate plan for environmental enhancement adequate to promote the psychological well-being of birds. The plan need not be created by the attending veterinarian (it can be created by a caretaker or other knowledgeable person), but must be approved by the attending veterinarian. 88 Fed. Reg. 10654, 10695. “Examples of environmental enrichments include providing perches, swings, mirrors, and other increased cage complexities; providing objects to manipulate; varied food items; using foraging or task-oriented feeding methods; and providing interaction with the care giver or other familiar and knowledgeable person consistent with personnel safety precautions.” 9 C.F.R. § 3.154(b).
- Attending veterinarians can exempt an individual bird from participation the environmental enhancement plan in consideration of its health or well-being. Exemptions must be recorded and maintained for a year and must be made available to APHIS upon request. 9 C.F.R. § 3.154(e).
(2) Animal Health and Husbandry Standards
These sections include standards feeding, watering, water quality, cleaning/sanitizing/housekeeping/pest control, employees, and compatibility and separation. 9 C.F.R. §§ 3.155-3.160.
Some notable items include:
- The diet for the birds must be appropriate for the species, size, age, and condition of the bird. Birds must be fed at least once per day except as directed by the attending veterinarian, normal fasts, or other professionally accepted practices. 9 C.F.R. § 3.155(a).
- Potable water must be provided in sufficient quantity to every birds housed at the facility, unless restricted by the attending veterinarian. 9 C.F.R. § 3.156.
- Cleaning and sanitizing must be performed as necessary to prevent excessive accumulation of waste/excreta, etc., but cleaning and sanitizing may be modified or delayed during breeding, egg-sitting, or feeding of chicks for birds that are easily disrupted during such behaviors. A schedule of cleaning and sanitizing must be documented and include when the enclosure was last cleaned/sanitized, when breeding season began, and when cleaning/sanitizing is expected to resume, and be available for review by APHIS inspectors. 9 C.F.R. § 3.158.
- Socially dependent birds must be housed in social groups except where the attending veterinarian exempts an individual bird. 9 C.F.R. § 3.160.
(3) Transportation Standards
These sections include standards consignments to carriers and intermediate handlers, primary enclosures used to transport live birds, primary conveyances, food and water requirements, care in transit, terminal facilities, handling, and climate and environmental conditions during transportation. 9 C.F.R. §§ 3.161-3.168.
These standards generally align with those of the International Air Transport Association (“IATA”). 88 Fed. Reg. 10654, 10702. The transportation standards have more objective requirements than the other bird regulations, but generally also include appropriate exceptions or exemptions from those objective requirements.
Some notable items with specific requirements include:
- Carriers and intermediate handlers cannot accept a live bird for transport in commerce more than 4 hours before the scheduled departure time (but this can be extended by up to 2 hours if the extension is not detrimental to the health and well-being of the bird). 9 C.F.R. § 3.161(a).
- Birds must be offered food and water during the 4 hours prior to delivery to the carrier or intermediate handler. 9 C.F.R. § 3.161(c). For weaned birds, there is an exception if the attending veterinarian approves a delay or a delay is in accordance with professional accepted standards. 9 C.F.R. § 3.164(a).
- Carriers and intermediate handlers must attempt to notify the consignee at least once every 6 hours following the arrival of any live birds at the bird holding area of the terminal cargo facility. 9 C.F.R. § 3.161(f).
- If delays will cause the shipment to arrive more than 12 hours later than scheduled, the carrier or intermediate handler must contact the consignor or consignee to determine the necessity or methods to supply fresh food, water, or moisture-providing foods. 9 C.F.R. § 3.161(f).
- If the primary transportation enclosure is not permanently affixed to the conveyance, there must be ventilation openings on two vertical walls of the primary enclosure that are at least 16% of the surface area of each wall or ventilation openings located on all four walls that are at least 8% of the surface area of each wall. 9 C.F.R. § 3.162(b).
- If the primary transportation enclosure is permanently affixed to the conveyance and the front opening is the only source of ventilation, the front ventilation opening must be at least 90% of the surface area of the front wall and be covered with bars, wire mesh, or smooth expanded metal. 9 C.F.R. § 3.162(b).
- All weaned birds must be fed at least once every 24 hours except as directed by veterinary treatment, normal fasts, or other professionally accepted standards. 9 C.F.R. § 3.164(c).
- For birds transported by ground or water, the birds must be visually observed at least every 4 hours. 9 C.F.R. § 3.165(a).
- For birds transported by air, the birds must be visually observed at least every 4 hours if the animal cargo space is accessible during flight. If it is not, the carrier must visually observe the birds whenever they are loaded and unloaded and whenever the bird cargo space is other accessible. 9 C.F.R. § 3.165(b).
The USDA anticipates that many entities will have questions regarding these new standards, and encourages questions to be emailed to email@example.com. It also intends to develop guidance by publishing and responding to frequently asked questions, and plans to develop web-based and paper-based training resources for licensees to assist with implementing the new standards.