In December 2014, the US Department of Agriculture (USDA) Office of Inspector General (OIG) issued an audit that was highly critical of the department’s enforcement of the Animal Welfare Act (as described in the Winter 2015 AWI Quarterly). Just a month later, the USDA's Animal and Plant Health Inspection Service (APHIS) announced its Strategic Plan 2015–2019, which read as if the audit had never occurred. The plan contains many ideas that, if implemented, will detract from strong enforcement of the Animal Welfare Act (AWA). Decades of experience with the USDA would indicate that such ideas—which are not new—are not likely to improve animal care and welfare.
Most disconcerting is a continued movement towards “non-regulatory” solutions, including the notion of “educating into compliance.” Underpinning this movement is
APHIS’ stated belief that “collaborating with regulated entities is the best way to ensure compliance and help the regulated community minimize costs associated with noncompliance.”
While the USDA should be clear about the requirements under the law so that regulated entities understand what is expected of them, compliance is best achieved by a track record of prompt action against violators and sufficient penalties to serve as a deterrent. The USDA’s role is that of enforcing the law, but this basic tenet of APHIS’s primary responsibility is conspicuously missing from the new plan.
One of the tactics delineated to achieve the plan’s objective of “improv[ing] the welfare of animals covered under the AWA” is to supplement traditional inspections with “extensive consultation for struggling facilities” which, in “limited cases,” will result in APHIS’ “offer[ing] facilities facing civil penalties the option of non-monetary settlement agreements.”
The requirements under the AWA are modest; they are minimum standards that should not be difficult for anyone responsible for caring for animals to provide. Facilities “struggling” to comply with the AWA should not be coddled. This “educating into compliance,” coupled with taking fines off the table, is the worst of all worlds. It flies in the face of 20 years of highly critical OIG audits, congressional intent, and the very purpose of the AWA.
APHIS already refers to its regulated industries as “customers.” Now it is using the words partners, partner with, partnership, facilitate, encourage, encouraging, education, trusting, collaborative, and collaborate repeatedly in its tactics to achieve this plan objective. But where is the enforcement? How will APHIS shift from this collegial relationship to one that has a prosecutorial backbone?
In these new strategic plan tactics, APHIS does not, for example, mention strengthening of enforcement in light of multiple negative OIG reports (including those from 2010 and 2014), or increasing the number of inspectors, whose numbers have remained relatively constant over the past five years, while the number of sites requiring inspection has increased by 40 percent (from 9,985 in 2011 to 13,985 in 2015).
Moreover, the new plan includes a partnership with industry-funded accrediting organizations, such as the Association for Assessment and Accreditation of Laboratory Animal Care International (AAALAC) and the Association of Zoos and Aquariums (AZA), “to reduce inspection frequency, within legal requirements, for facilities that have implemented and documented strong animal care and welfare programs.” (In addition, the USDA suggests it’s going to work “with stakeholders to encourage development of a private sector, professional dog breeder’s accreditation program.”)
APHIS already has a risk-based inspection system and AAALAC and AZA are hardly impartial or disinterested parties. These organizations, it should also be noted, have accredited facilities that have been cited by the USDA inspectors for serious violations of the AWA. Reducing inspection frequency based on partnering with organizations whose existence depends on funding from the very entities APHIS is supposed to be regulating is problematic, at best. A huge drawback is that industry documents regarding conditions at the facilities will not be available to the public for scrutiny, yet the USDA will be reducing its inspection frequency by relying on these accrediting bodies.
There is a tremendous difference between “encouraging education and discussion,” “build[ing] collaborative partnerships” and “facilitat[ing] outreach” regarding regulated entities—and focusing on improving APHIS’ long-problematic enforcement of the AWA.
Another strategic plan tactic that merits attention is the USDA’s intent to “further streamline and standardize animal welfare inspections through continual business process improvement efforts.” The phrase is so vague it is hard to fathom what it really means. In the past, this focus on streamlining has resulted in inspection reports that provide fewer and fewer meaningful notes from the inspectors about AWA violations—and even the failure to cite items that, while noncompliant, are not viewed as significant enough to warrant documentation on the inspection report forms. A detailed description by inspectors is vitally important and frankly deserves encouragement and strengthening.
Nonetheless, the plan is not all bad in that it does emphasize the importance of the USDA being involved in protecting animals during emergencies, including the “development of detailed response plans.”
In addition, of particular note, the plan appears to have a different attitude about enforcement of the Horse Protection Act (HPA): it contains the lofty and laudable goal to “eliminate soring in the Tennessee Walking Horse industry.” The tactics to achieve this include bringing in additional personnel so there can be “increased attendance and oversight” at horse shows and other events, and it seeks to improve compliance through use of a broad range of new technologies. Compliance and enforcement actions will be reviewed and evaluated in an effort to improve compliance. If the USDA wants to achieve its goal regarding the HPA, however, an essential component is to support an amendment to the law to eliminate Designated Qualified Persons, or “DQPs.” These horse industry inspectors have an appalling track record of failure to enforce the HPA. Further, the USDA should take note of the enormous problems it has had with this industry’s efforts at self-regulation (and keep this in mind as it contemplates relying on industry self-regulation in trying to better meet its mandate under the AWA).
In summary, although there is some good language regarding non-AWA issues, the new Strategic Plan 2015–2019 focuses far too much on collaborating, partnering, and educating entities that APHIS should instead be regulating through its primary legal and moral mandate: strong, effective enforcement of the Animal Welfare Act.