Getting Better All the Time
Animal Welfare Act Compliance: Necessary for Lawful Operation, Essential During a Pandemic, and the Starting Point for Successful Animal Welfare Programs
By James F. Gesualdi
To keep ahead, each one of us, no matter what our task, must search for new and better methods—for even that which we now do well must be done better tomorrow.
—James F. Bell
Animal Welfare Act Compliance Is Essential to Zoological Organization Success
The U.S. Animal Welfare Act (AWA) is the federal law that authorizes zoological organizations to allow members of the public to view and be inspired by animals. Complete and ongoing compliance with the AWA's extensive regulations is required in order to maintain the license necessary to exhibit the animals to the public. AWA compliance is also a starting point for providing good, quality lives for the animals entrusted to our care.
Game-changing New AWA Licensing Regulation
A significant change in the AWA regulations impacting every licensed zoological organization was published May 13, 2020, and will become effective November 9, 2020: https://www.govinfo.gov/content/pkg/FR-2020-05-13/pdf/2020-07837.pdf.
Currently, a zoological organization licensed to exhibit animals under the AWA annually submits a renewal application affirming compliance, along with the requisite fee, and is all but automatically issued a one-year license renewal. Under the new regulation, to be implemented over the next three years, licensees will now be granted three-year, non-renewable licenses, to maintain a maximum number of animals and specifically authorized species. Every three years, a new license application must be submitted, and a pre-licensing inspection must find the facility in complete compliance for a new license to be issued.
The new regulations allow licensees to obtain authorization for maximum numbers of animals to be maintained during the period of the license, in increments of 50. Licensees must also have express authorization to maintain the following species: (1) certain nonhuman primates; (2) exotic and wild felids ("including but not limited to lions, tigers, leopards, cheetahs, jaguars, cougars, lynx, servals, bobcats, caracals, and any hybrid cross thereof"); (3) hyenas and/or exotic and wild canids ("including but not limited to wolves, coyotes, foxes, and jackals"); (4) bears; and (5) megaherbivores (elephants, giraffes, rhinos, hippos) (85 Fed. Reg. at 28795). Changes in the total number of animals at the facility above the amount indicated on the license, or type of animals maintained (when the new animals are of a group of species requiring special authorization) will require a new license in advance of such change.
Like the current licensing process, license applicants will be afforded three pre-licensing inspections to demonstrate full compliance. Under the new system, a denial after a third pre-licensing inspection can be appealed to the agency head, and then potentially to an administrative law judge. Certain facilities with clean compliance records may be entitled to a temporary license to continue operating pending the appeals.
This new licensing approach is the result of serious concerns regarding the current ministerial renewal process. High-profile situations involving licenses being renewed in the midst of agency enforcement procedures hastened the change, even though the vast majority of licensees are in substantial compliance with the AWA.
The agency stated that in order to protect animal welfare and the public, it is necessary to: (1) demonstrate AWA compliance (via pre-licensing inspection); (2) possess adequate knowledge and experience for the number and nature of animals maintained; and (3) have adequate programs for maintaining compliance of "aging facilities." This reasoning underscores the importance of appropriate staffing, competence and expertise, training, facilities, and upkeep, including ongoing preventative maintenance. The agency also noted that organizations with strong compliance records should "be able to confidently demonstrate compliance" (85 Fed. Reg. at 28783).
The Excellence Beyond Compliance® book and this column have urged the good practices of "self-certified compliance reporting" post-inspection and pre-license renewal, as well as website posting of inspection reports, self-certified compliance reports and improvement plans, as effective and transparent means of promoting compliance and advancing animal welfare. These practices should now be universally adopted to put zoological organizations in the best position for their next license.
Inspection Report Appeals Process Formalized
The new regulation also codifies the helpful and long-standing inspection report appeals process for challenging the findings in an inspection report (New 9 C.F.R. 2.13). The agency noted: "[b]y providing licensees with the opportunity to appeal a noncompliance documented on an inspection report, we are able to consider facts that may not have been available to the inspector at the time of the inspection and therefore to ensure that the USDA has all available information" (85 Fed. Reg. at 28787).
Updated Agency AWA Guidance on Lion and Tiger Enclosures, Marine Mammals, Drive-through Zoos and Parks, and Informal Consultations
The U.S. Department of Agriculture Animal and Plant Health Inspection Service Animal Care unit released the latest edition of its Animal Welfare Inspection Guide in March 2020. The Inspection Guide is an essential reference for agency inspectors, and is meant to promote consistent, higher-quality inspections. Zoological organization staff should be familiar with the Inspection Guide, and incorporate relevant insights into their regulatory compliance and animal welfare programs. It is invaluable to learn from the Inspection Guide before being thrust into an unfortunate situation where it is consulted after the fact to better understand the implications of something that has already happened.
The updated Inspection Guide has several new, reformatted, or revised sections worthy of immediate review, if applicable to your organization and the animals in your care. The marine mammal facility inspection information previously included in an appendix is now in the chapter on specific types of inspections. In that same chapter, the lengthy text on lion and tiger enclosure height inspections has been streamlined to just one page. Significantly, the section on drive-through zoo/park inspections has been greatly expanded from less than two pages to seven. It provides much greater detail on what the inspectors are to look for in terms of animals, handling, feeding (including compatibility in mixed-species settings), water, environmental hazards, records, and staff training and qualifications. If any of these are applicable to your facility, please read those sections of the Inspection Guide immediately. Then, take an honest assessment of anything you may want to address or seek clarification on before your next inspection.
Every regulated zoological organization should review the entirely new section on courtesy calls and courtesy visits. These occur when you ask your inspector or the agency to come out and review plans for a new facility, program, or species—or seek clarification, guidance, or suggestions to better your understanding of the AWA. These are distinct from inspections and compliance visits. In addition to spelling out these helpful, proactive forms of engagement, the Inspection Guide also notes how they will be documented in the agency's records (and thus likely subject to disclosure under the Freedom of Information Act). So, in the absence of pandemic-specific guidance from the agency, courtesy calls and visits (or virtual ones) might be in order to better protect the animals, staff, public, inspectors, and the zoological organization.
For Those Who Love Giraffes—and Doing the Right Thing by Them
Please see the agency's Animal Care Aid Protecting Giraffes in Cold Weather, which updates and expands upon the old Tech Note and has other helpful suggestions for enhancing giraffe welfare.
The Excellence Beyond Compliance® Approach
The ideas in the book and in this column are meant to empower us to do even more good work, by taking responsibility for getting better and improving our capacity to do the right thing. The better we become as individuals, professionals, and team members within our organizations and the zoological community, the more effectively we can serve animals and people through complete and ongoing AWA compliance and enhancing animal welfare.
For Patti Milito, with gratitude for 19 years of working together and making a difference for animals and people.
© 2020 James F. Gesualdi, P.C. The opinions expressed herein are solely those of the author. This is not, nor should it be construed as, legal advice.
For more information on EXCELLENCE BEYOND COMPLIANCE® see http://excellencebeyondcompliance.com/.
More About James F. Gesualdi
The San Diego Zoo Global Academy is pleased to share a link to an ABA Journal article about Academy columnist James F. Gesualdi, written by Amanda Robert:
A Love of Dolphins Sparked Lawyer's 30-year Crusade to Improve Well-being of Animals.