By: Norma Bennett Woolf  Date: 01/12/2012 Category: | Research Reports |

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.

  1. 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.
  2. 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.
  3. 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."

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."

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."


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

About The Author

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Norma Bennett Woolf -

Editor and Writer for the National Animal Interest Alliance.

All Authors Of This Article: | Norma Bennett Woolf |
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