Finally! Animal Welfare Act Bird Regulations Part 2: What Do They Require?

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 animalcare@usda.gov.  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.

PETA Open Records Case Takes an Interesting Turn

On February 17, 2023, a panel of the U.S. Court of Appeals for the Ninth Circuit reversed a preliminary injunction that had restrained the University of Washington from releasing records containing personal identifying information of current and former members of the University’s Institutional Animal Care and Use Committee (IACUC).  The records request had been submitted by animal rights organization, People for the Ethical Treatment of Animals (PETA).  The appellate panel ruled that the district court erred in determining that the IACUC members had raised a serious issue that their First Amendment right of association would be infringed by release of the records, but did not reach the other arguments raised by the IACUC members which presumably will be addressed on remand.  Sullivan v. University of Washington, No. 22-35338 (9th Cir. Feb. 17, 2023). Continue reading “PETA Open Records Case Takes an Interesting Turn”

Finally! Animal Welfare Act Bird Regulations Part 1: Who is Covered?

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 those engaged in certain activities.  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?”

This blog post will cover the first question—Who. We will publish a second blog post covering the “What” of the new standards shortly.

The USDA estimates that the new regulations will cover 5,975 to 7,913 newly regulated entities maintaining birds for covered uses.   Could you be one of them?

Part I:  Who the AWA Bird Regulations Apply (and Do Not Apply) To:

It is important to remember as a starting point that the AWA applies to:

(1) Dealers/breeders,

(2) Research facilities,

(4) Exhibitors

(5) Operators of auction sales, and

(6) Carriers/intermediate handlers

If you are not engaged in these activities with a covered animal, the AWA does not apply to you and you do not require a license.  For example, if you just own a covered animal as a pet (that you do not exhibit for money/sell, etc.), then these regulations do not apply to you.

Further, even if you are engaged in one of the above activities with birds, the new bird regulations do not apply to the following:

  • Birds bred in captivity and used for research, teaching, testing, or experimentation purposes
    • Excluded from regulatory definition of “animal” under 9 C.F.R. § 1.1[1] (which excludes birds bred for use in research)
    • New regulatory definition “bred for use in research” under 9 C.F.R. § 1.1 “means an animal that is bred in captivity and used for research, teaching, testing, or experimentation purposes”
  • Retail Pet Stores (brick and mortar, not online)
    • Exempted from licensing under 9 C.F.R. § 2.1(a)(3)(i)
  • Farm animals intended for use as food or fiber, including:
    • poultry (chickens, turkeys, swans, partridges, guinea fowl, pea fowl, ducks, geese, pigeons, doves, grouse, pheasants, quail)
    • ratites (ostrich, rhea, emu)
    • Excluded from regulatory definition of “animal” under 9 C.F.R. § 1.1
  • Falconry and exhibitions of birds that solely promote the art of falconry
    • Excluded from regulatory definition of “animal,” which includes only those used for research, testing, experimentation, exhibition, or as a pet under 9 C.F.R. § 1.1
  • Eggs
    • Excluded from the regulatory definition of “bird” under 9 C.F.R. § 1.1
  • State and county fairs, livestock shows, rodeos, field trials, other fairs or exhibitions intended to advance agricultural arts and sciences
    • Excluded from regulatory definition of “exhibitor” under 9 C.F.R. § 1.1
  • Racing pigeons
    • Excluded from definition of “exhibitor” under 9 C.F.R. § 1.1 because they are historically rooted in advancement of agricultural arts and sciences
  • Bird fancier shows
    • Excluded from definition of “exhibitor” under 9 C.F.R. § 1.1 because they are historically rooted in advancement of agricultural arts and sciences
  • There are also certain de minimis exceptions:
    • Those who sell 200 or fewer pet birds of 250 grams or less annually (e.g., cockatiels, budgies, finches, lovebirds, parakeets) and/or sell 8 or fewer pet birds of more than 250 grams annually (e.g., cockatoos, macaws, African gray parrots) and is not otherwise required to obtain an AWA license (9 C.F.R. § 2.1(a)(3)(iii))
    • Exhibitors of four or fewer raptors who hold valid permits from U.S. Fish and Wildlife Service and are not otherwise required to obtain an AWA license (9 C.F.R. § 2.1(a)(3)(viii))
  • Anyone transporting a migratory bird covered under the Migratory Bird Treaty Act from the wild to a facility for rehabilitation and eventual release in the wild, or between rehabilitation facilities, and has obtained authorization for the U.S. Fish and Wildlife Service for that purpose
      • Excluded from the regulatory definitions of “carrier” and “intermediate handler” under 9 C.F.R. § 1.1

The bird standards go into effect on March 23, 2023.  For current AWA licensees and registrants (those who have a license for other covered species), the standards are applicable on August 21, 2023.  For those who will need to apply for an AWA license, the standards are applicable on February 21, 2024.

Stay tuned for Part 2 in which we will cover the substance of the new bird regulations.

[1] The text of the revised regulations can be found in the Federal Register at 88 Fed. Reg. 10654, 10713-21 (available 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)

 

USDA Issues Amendments to Animal Welfare Act Licensing Regulations

by John M. Simpson.

Today, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) published final amendments to the regulations governing the licensing of animal dealers, exhibitors and operators of auction sales under the Animal Welfare Act (AWA), 7 U.S.C. § 2131 et seq. Continue reading “USDA Issues Amendments to Animal Welfare Act Licensing Regulations”

Federal Legislation Requiring “Petfax” Aims to Improve Pet Buying Process

by Michelle C. Pardo

This week, Congressmen Charlie Crist (D-FL) and Guy Reschenthaler (R-PA) introduced the Petfax Act (H.R. 5715), legislation designed to bring more transparency to the condition of pets being sold by sellers and breeders.

The term “Petfax,” which appears to be a take on the trademarked name and service “Carfax” that aids automobile buyers in providing a vehicle’s history, such as ownership, accidents, and repairs, is described as mandating “honesty and transparency in the commercial sale of dogs and cats.”  The legislation is the third in a series of “anti-puppy mill” bills introduced in this Congress.  The divisive term “puppy mill” has been used as to refer to dogs bred in large-scale, commercial dog breeding operations. Continue reading “Federal Legislation Requiring “Petfax” Aims to Improve Pet Buying Process”

Court Dismisses Challenge to USDA’s Failure to Issue AWA Avian Regulations

By John M. Simpson

Earlier this week, a federal district court in Washington, D.C., dismissed an action brought by animal rights organizations challenging the failure of the U.S. Department of Agriculture (USDA) to issue animal welfare regulations specific to birds under the Animal Welfare Act (AWA).  American Anti-Vivisection Soc’y, et al. v. U.S. Dep’t of Agriculture, et al., No. 1:18-cv-01138 (TNM) (D.D.C. Dec. 10, 2018).  While finding that the plaintiffs had pleaded sufficient facts to establish Article III standing to sue, the court rejected their substantive claims under the Administrative Procedure Act (APA):  (i) that USDA’s failure to promulgate regulations applicable to birds was “agency action unlawfully withheld;” and (ii) that USDA’s decision not to issue the standards was arbitrary and capricious, an abuse of discretion and contrary to law.  Continue reading “Court Dismisses Challenge to USDA’s Failure to Issue AWA Avian Regulations”

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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