Déjà Vu: Latest OIG Report Again Censures USDA's Enforcement of the AWA

In December 2014, the USDA Office of Inspector General (OIG) issued its latest broadside against the inadequacy of the USDA’s enforcement of the Animal Welfare Act (AWA). This sharply critical OIG report is the fourth to be issued in 20 years. This latest report, like its predecessors, cites specific examples of enforcement deficiencies, poor oversight, inadequate penalties, lack of deterrence, and many examples of animals suffering and dying.

One glaring problem involves what happens when businesses licensed or registered under the AWA (including research facilities that perform experiments on animals) are charged with violating the law. In such instances, they are given the opportunity to settle the case and pay a reduced penalty. Settling cases is a practical necessity for USDA enforcement staff facing significant backlogs, as it saves the time and costs associated with proceeding to hearings.

The amount of reduction, however, is subject to debate—and much consternation. As in the three previous audits, the OIG found monetary penalties to be woefully deficient. It noted how violators have tended "to consider the monetary stipulation as a normal cost of business, rather than a deterrent for violating the law,” and that in 2012, the USDA “issued penalties to violators that were reduced an average of 86 percent from AWA’s authorized maximum penalty per violation, even though these cases involved animal deaths and other egregious violations.”

Such minimized penalties fly in the face of what Congress intended in 2008 when it almost tripled the maximum penalty to $10,000 to “strengthen fines for violations of the Animal Welfare Act.” Indeed, the report stated that these reduced fines “had the effect of offsetting Congress’ increase of the maximum penalty.” Effective penalties are needed if there is any hope of enforcing the law and deterring future violators.

The USDA will also reduce penalties further if it determines the violator acted in “good faith.” One example provided was a laboratory technician who left a chinchilla in a cage that was run through a cage washer; the 180-degree water killed the animal. Because the research facility had no prior history, self-reported the violation, and took corrective action by adding more safeguards, the USDA granted the facility a “good faith” reduction. The report indicates, “OIG believes the facility should not have received a good faith reduction because the chinchilla suffered before its death as a result of the violation, and the facility was especially negligent in causing the death.” It is crucial for research facilities to prevent injury, suffering and death of the animals who are in their care, and it is vitally important that facilities don't receive a free pass the first time they are cited for causing animal suffering.

This year marks the 30th anniversary of the landmark 1985 amendments to the AWA, which established Institutional Animal Care and Use Committees (IACUCs)—oversight entities responsible for ensuring compliance with the AWA, as well as with the Public Health Service’s Policy on the Humane Care and Use of Laboratory Animals. Based on inspections conducted from FYs 2009–2011, the OIG found that IACUCs did not adequately approve, monitor, or report on experimental procedures on animals (similar to its 2005 report findings).

During these three years, 531 of 1,117 research facilities were cited for an astounding 1,379 IACUC-related violations regarding lack of oversight. The OIG suggested that the USDA provide IACUC-related training or best practice guidelines to the research facilities. The USDA has stated that the AWA relies on a research facility to “monitor its own house”—but clearly such facilities are unable or unwilling to do so. IACUCs were cited for violations related to protocol review, e.g., “(1) incomplete descriptions of the proposed use of the animals, (2) inadequate searches for alternatives to painful procedures, (3) no descriptions of euthanasia method to be used in the experiment, and (4) no descriptions of procedures designed to assure that pain to animals would be limited to that which is unavoidable.” IACUCs were also cited for frequent violations related to monitoring the care and use of animals, including failure to provide adequate veterinary care, conduct semi-annual inspections, address significant deviations made to protocols, and conduct continuing review of protocols.

Moreover, the audit found that the USDA’s veterinary medical officers (VMOs) were not adequately reviewing research protocols or annual reports. Why? Lack of time. Facilities misreported the number of animals used, reported animals in the wrong pain category, or were unable to confirm numbers. Yet none of the VMOs reviewed by the OIG cited the violating facilities for any of these serious errors.

The audit also found that, over 13 years, the USDA had conducted at least 500 inspections at 107 research facilities that had not used animals for more than two years. The OIG considered this wasteful and recommended that the department conduct limited inspections of these labs. However, since none had cancelled their research registrations, they could still experiment on regulated animals.

Despite the OIG’s continued condemnation of USDA enforcement efforts, the department plans to emphasize not enforcement, but “non-regulatory” solutions—e.g., education. If the USDA has such systemic issues with enforcement, how can it possibly hope that non-regulatory solutions will lead to better compliance? The USDA is also implementing a new organizational structure that will simply add layers of bureaucracy to an already understaffed, underfunded department. More VMOs and animal care inspectors (ACIs) are needed, not bureaucrats. The National Agricultural Library's Animal Welfare Information Center has the expertise to provide needed education, but more funding is required and the facilities must listen. Meanwhile, Animal Care should stick to its all-important duty of enforcement.

Animal and Plant Health Inspection Service Administrator Kevin Shea wrote last September that “enforcement delayed is enforcement denied.” But, as has been documented in audit reports since 1995, it is not simply a matter of delayed enforcement. Rather, the USDA has failed to enforce. It has also failed to adequately penalize, deter violators, and ensure adequate research oversight. AWI understands the difficulty in ensuring compliance with the AWA with just 57 VMOs and 68 inspectors (as of FY 2010) responsible for over 8,656 facilities. AWI urges the USDA to do the following: improve enforcement, substantially increase the number of VMOs and ACIs, reform its new organizational structure, and ensure that IACUCs comply with their vital regulatory responsibilities.

It’s been 20 years now since these problems first came to light. Judging by the repeating refrain of the four OIG reports, little corrective action has been taken. That must change. The animals deserve the minimal protections the AWA was meant to provide.