The saga continues: USDA, activists settle rodent and bird case, but Congress
withholds money for implementation
By Norma Bennett Woolf
Animal rights activists who want to end the use of animals in research, a federal
court judge, biomedical researchers and their professional societies and advocates,
and the US Congress are all part of a see-saw effort to define the limits of
the US Animal Welfare Act.
The question: Should rats, mice, and birds used in research be included in
the AWA so that USDA has jurisdiction over treatment of these animals?
USDA said no, animal rights activists went to court, the court accepted the
suit, USDA and the activists settled out of court, and Congress passed a bill
that in effect nullifies the settlement by refusing money to implement it.
The suit
The current rules implementing the AWA define "animal" as "Any
live or dead dog, cat, nonhuman primate, guinea pig, hamster, rabbit or any
other warm-blooded animal which is being used or is intended for use for research,
teaching, testing, experimentation, or exhibition purposes or as a pet. This
term excludes: Birds, rats of the genus Rattus and mice of the genus Mus bred
for use in research ...."
The lawsuit sought re-defining of "animal" to include these species.
For years, the US Department of Agriculture has refused to add rodents and
birds to its purview under the Animal Welfare Act on the grounds that these
animals are protected under other federal and professional guidelines and that
adding them to the AWA would severely tax the agency's ability to enforce the
law. Animal rights activists who oppose all animal testing have fought for years
to get these animals included on the grounds that Congress intended that all
animals be included when it approved the AWA nearly 30 years ago.
The Alternatives Research & Development Foundation, an affiliate of the
American Anti-vivisection Society, is the lead plaintiff in the most recent
lawsuit filed to force USDA to accede to its wishes. The grounds for the suit
include the contention that Congress wanted all animals covered and that failure
to cover rodents and birds hurts the development of alternative methods of testing
that do not use animals. AWA regulations require that alternatives be considered
when research protocols are designed, but rules of the National Institutes of
Health, the government agency that oversees these rodents and birds in research,
do not.
The settlement
The out-of-court settlement1 reached in late September resulted in dismissal
of the suit. The provisions are:
- Defendants will grant plaintiffs' "Petition for Rulemaking To Amend
the USDA Regulation Excluding Birds, Rats, And Mice From Coverage Under the
Animal Welfare Act" filed April 29, 1998.
- Defendants agree to initiate and complete a rulemaking on the regulation
of birds, rats and mice within a reasonable time in accordance with the Administrative
Procedures Act and any other applicable regulations.
- Defendants agree to keep plaintiffs' counsel informed through semi-annual
status reports of the current procedural status of the rulemaking process.
Defendants also agree to forward copies of the proposed rule and final rule
to plaintiff at the same time this information is made available to the public
in the Federal Register.
- Defendants agree to pay $18,000 in attorney fees in accordance with the
Equal Access to Justice Act following dismissal of this lawsuit.
Biomedical researchers were aghast. Scientists and their professional societies
opposed the settlement as an undue financial burden on research projects and
complained that USDA gave in to activists who battle to end all use of animals
in research.
Noting that these animals are already covered by the NIH and the Association
for Assessment and Accreditation of Laboratory Care International, Barbara Rich,
executive vice president of the National Association of Biomedical Research,
told the Associated Press: "From our point of view we don't see the value
of duplicate regulations that are very expensive, that are not going to improve
animal welfare, especially when this agency doesn't have the resources to do
what they are properly doing now."
However, USDA Secretary Dan Glickman defended the settlement as necessary to
prevent "an adverse judgement"2 that could have resulted in a court
order to "immediately extend coverage under existing standards to rats,
mice, and birds - with no opportunity for input of any kind from the research
community and other interested parties."3
Instead of a court-ordered result, the settlement allows USDA to follow established
procedure for adopting new regulations. The first step is to initiate the rule-making
process that involves writing draft rules and seeking and evaluating public
comment. Following review and consideration of the comments, USDA can rewrite
the draft and submit the new text for another round of public input. Under this
procedure, adoption of new rules can take several years and, if there is considerable
opposition to the proposal, new rules may or may not reflect the desires of
the organization that petitioned for change.
Congress weighs in
Following approval of the settlement by US District Court Judge Ellen Segal
Huville, Congress passed an amended appropriations bill that prevents USDA from
using appropriated funds to initiate rulemaking to amend the definition of animal
in the Animal Welfare Act. The amendment was introduced by Senator Thad Cochran
of Mississippi, the chairman of the Senate Appropriations Committee and was
unanimously approved by the House-Senate Conference Committee. As part of the
agriculture appropriations bill, it remains in effect for the fiscal year.
The relevant section of the bill reads: "Sec. 772. None of the funds appropriated
or otherwise made available by this Act shall be used to issue a notice of proposed
rulemaking, to promulgate a proposed rule, or to otherwise change or modify
the definition of 'animal' in existing regulations pursuant to the Animal Welfare
Act."
Jordan Cohen, MD, President of the Association of American Medical Colleges
said in a statement following the congressional action, "The language,
at least for the short term, will prevent the diversion of millions of dollars
and uncountable hours from vital research to a bureaucratic record-keeping activity
that in the long run would have provided no benefit whatsoever to laboratory
animals. Most importantly, patients will continue to benefit from the many novel
therapies derived from the research using rats, mice and birds."4
It was the activists' turn to howl.
John McArdle, director of suit plaintiff ARDF, told the Washington Post: "Obviously
they are not willing to accept the decision of a federal court judge, so they
found a way to go behind her back. For years, we've been described as the sneaky
ones, the maniacs, the ones who work outside the law. Now we played the system,
we won fair and square, and it looks like they are the ones who are not playing
straight."
Notes
1. In the United States District Court for the District of Columbia, Stipulation
of Dismissal of Case Number: 1:99CV00581 before the Honorable Ellen Segal Huville:
caption Alternatives Research & Development Foundation, et al., Plaintiffs
v. Daniel Glickman, Secretary of Agriculture, et al., Defendants
2. Letter from USDA Secretary Dan Glickman to Patti L. Strand, president, National
Animal Interest Alliance, October 11, 2000
3. Ibid.
4. Newsletter, Americans for Medical Progress, October 19, 2000
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