Friday, February 23, 2018

USDA Third-Party Confusion

Carlotta Cooper

Leave it to USDA-APHIS to somehow manage to terrify both dog breeders and the Humane Society of the United States at the same time. It would be going too far to say that shared fear has made these groups into allies but everyone seems to be confused, suspicious, or downright petrified about USDA’s request for feedback about third-party inspections.
If you’re not familiar with this issue, Bernadette Juarez, Deputy Administrator of Animal Care with APHIS, provided information about the idea to AKC Delegates in Orlando in December. A few weeks later USDA sent out the first notice to stakeholders, asking for feedback about groups that were already carrying out third-party inspections. Comments can now be posted in the Federal Register.
This is the pertinent part of the USDA’s request:

USDA Seeks Public Input on Recognizing Third-Party Inspections and Certifications of Animal Welfare Act Facilities
USDA Animal Care seeks your input on whether we should recognize inspections (and similar reviews) by third-party programs when determining the frequency of federal inspections for facilities regulated under the Animal Welfare Act.
...Our inspectors conduct routine, unannounced inspections of all Animal Welfare Act licensees and registrants. Various factors determine the inspection frequency for each entity – including a facility’s history of adhering to the federal regulations and standards. Some licensees and registrants already use a third-party program to support animal welfare at their facilities. We are interested in learning more about these programs, and hearing our regulated community’s and stakeholders’ views on how we might consider the use of these programs in our administration of the Animal Welfare Act.”

So, who or what are third-party inspectors? They would seem to include inspection programs such as AKC’s inspections, programs developed or under development by Purdue and Canine Care Certified, state commercial breeder inspection programs, and other programs which are already being used to inspect breeders. That’s a key point. USDA specifically mentions that they are looking for feedback about programs that already exist. This would appear to shut out groups such as HSUS and most other animal rights groups since they do not have inspection programs like this. They respond to complaints or only act to seize animals.
So, what does this mean for dog breeders? And why is everyone upset?
First, if you are not being inspected by USDA-APHIS, this issue may not affect you at this time. However, thanks to the Retail Pet Store Rulemaking a couple of years ago, there are show dog and other hobby breeders who are inspected by USDA-APHIS now, even if they don’t breed many dogs or have many litters. If you are inspected by USDA-APHIS, any change in who inspects you or how often would certainly affect you. That’s why dog breeders are concerned. Some people fear that if USDA-APHIS makes changes to their inspection process, the inspections might be carried out by people or groups who are in league with animal rights groups. Or they are afraid that the inspections might somehow be farmed out to HSUS.
Depending on who inspects you and the regulations they follow, any changes to those regulations could also affect breeders. For instance, let’s say that USDA makes this change and allows third parties to do some of their inspection work. If you live in a state where there are state commercial breeder inspectors, your state lawmakers could vote to have laws and regulations that are stricter than federal AWA regulations. You would have to meet those laws and regulations. And your chances of being inspected would likely be much greater than if you were a small blip on the APHIS radar.
On the other hand, HSUS has started campaigning against the request for third-party inspection feedback. They have asked their followers to flood the Federal Register with negative messages. Wayne Pacelle, the former head of HSUS, took time to post a lengthy tirade about third-party inspections on his blog even while he was facing sexual harassment allegations. According to Pacelle, HSUS fears that the fox will be guarding the hen house. He thinks that AKC will end up in charge of inspections for dog breeders. To quote a friend, animal rights folks are “having a vegan cow” over this idea. They are in a panic since they believe that all dog breeders are “puppy mills.”
It should be mentioned at this point that dog breeders are not the only people who would be affected by any change in USDA-APHIS inspections. These inspections apply to all entities covered under the Animal Welfare Act (AWA). That means they also include zoos, research laboratories that work with animals, cat breeders, rabbit breeders, and other breeders covered under the AWA.
Seeking some clarification, I contacted AKC Government Relations. I was hoping that AKC had a position on USDA’s request for feedback about third-party inspections. I was told that, historically, AKC has opposed the idea of third-party inspections. Some of their concerns include having organizations or inspectors with anti-breeder biases doing the inspections on behalf of the federal government. This is part of AKC’s response to a different USDA rulemaking in 2017:

We believe all USDA inspections should be conducted by individuals trained and employed by USDA. Third-party inspectors are less likely to have the animal husbandry training and hands-on pet breeding experience important for working effectively with regulated pet breeders. They are also more likely to be sourced from groups that have an anti-breeder bias or agenda.
The AKC believes that the use of inspectors that are not USDA employees could lead to a significant risk of such individuals implementing their personal cause under the color of federal government administrative enforcement. Damaging outcomes could include unreasonable inspections of licensees’ premises or inspections resulting in unfounded (non)compliance issues. This would likely diminish faith and confidence in the independence and fairness of the USDA inspections program, and may even decrease licensing compliance.
Even though such parties would be acting, in large part, pursuant to their personal beliefs prohibiting welfare-based animal uses, their “coveras third-party inspectors under the direction of a federal agency would likely result in federal governmental immunity protecting the non-governmental character of their actions. In such cases, parties whose rights were deprived may receive little to no protection under federal law (for example, such individuals would may be able to avail themselves of a 42 USC §1983 civil claim for deprivation of rights)...”

Just to be clear, these were AKC’s comments about third-party inspections in relation to a different issue but they seem to apply in this case, too.
Government Relations also pointed out that some jurisdictions do allow for licensees to select which third party inspectors will conduct their inspections. This could allay some of AKC’s concerns but not all of them. Another issue Government Relations brought up was the matter of FOIA, or Freedom of Information Act requests of government documents, such as the documents kept by USDA and the groups doing the inspections. FOIA requests could mean that breeders inspected by third parties might have their personal and business information exposed when animal rights groups submitted requests. This has been a highly contentious issue in the last several years between animal rights groups and government regulatory agencies. Because of lawsuits, government agencies have recently removed much personal information relating to the people they inspect from public view. HSUS and other groups have sued the government to have data returned to web sites but they have lost these suits. However, they are still able to access a great deal of information through FOIA requests – it just takes more time and they have to be specific about the information they are seeking.
The sense that I got from AKC Government Relations – and this was only my impression – was that Government Relations didn’t seem very encouraging about third-party inspections at this time but they were still examining the issue.
Pacelle, whatever you may think of him, also made some good points in his rant about third-party inspections. One point he raised which should be considered is USDA’s less than happy history with third-party inspections in enforcing the Horse Protection Act (HPA). This is the other inspection program that USDA operates. USDA came up with a plan to certify Horse Inspection Organizations (HIO) with designated qualified persons (DQP) to inspect horses, primarily for soring. The program has pretty much been a disaster, attacked on all sides, with lawsuits from those inspected and pressure from HSUS on Congress to tighten laws.
With this kind of history of using third-party inspectors, why would USDA-APHIS want to try using them with the Animal Welfare Act? We can only guess. One thing that was abundantly clear following the Retail Pet Store Rulemaking in 2013 was the fact that lots more dog, cat, rabbit, and other pet breeders would potentially be included among the people who could be inspected by USDA-APHIS if they strictly interpreted the regulations. So far, USDA has not done that. There has been no USDA crackdown on small breeders with web sites. To my knowledge, they have not questioned the exemptions people have claimed for breeding dogs (preservation of bloodlines, working dogs, etc.). The number of female dogs small breeders keep for breeding has not been seriously questioned by USDA. They certainly haven’t done anything to stop the enormous flow of “rescue” dogs flooding into the country from all over the world, brought here by retail rescues and Humane Society International (HSI) – whose leader, Kitty Block, just became the new CEO of HSUS.
Now consider if USDA does approve the use of third-party inspectors, whether they are state Ag agency inspectors, state commercial dog breeder inspectors, or even AKC inspectors (this is a hypothetical). More inspectors will be able to visit small breeders. They will be able to check your exemptions and count how many female dogs you have. They can ask you how many puppies you ship or sell “sight unseen” and ask for documentation.
I could be wrong, but that’s my guess about why USDA-APHIS is asking for feedback about third-party inspections. They vastly expanded the number of breeders and other groups that could be inspected in recent years but they don’t have the manpower or budget to inspect everyone – something that many people told them in comments during the Retail Pet Store Rulemaking in 2013. If they certify third-party inspection groups that already exist and accept their findings, they would be inspecting many more people than they currently inspect.
Of course, there are other theories. This topic certainly needs more discussion.
USDA-APHIS will be having several more in-person “listening” sessions over the next few months, along with one session online. You can make comments or give feedback about third-party inspections on the Federal Register. For more information about this issue, check the USDA web site.

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