In August, USDA issued no warnings, filed no complaints and imposed no penalties through settlements with any of the 8,000 or so facilities it licenses and inspects under the federal Animal Welfare Act, according to documents obtained by an animal rights group.
The agency says the drop is the result of a suspension of hearings due to litigation, as well as a revamped enforcement process that emphasizes working more closely with alleged violators rather than a protracted investigative process that numerous internal audits have faulted for ineffectiveness.
But the result is less transparency into an increasingly opaque enforcement system. In two years, the agency’s records have gone from being publicly searchable online to often available only by Freedom of Information Act requests and in redacted form. And the enforcement changes, critics charge, favor regulated-animal businesses while further eroding public accountability.
“It’s all part of this pro-industry, anti-regulatory agenda,” said Eric Kleiman, a researcher who has tracked the USDA’s animal care enforcement for the Animal Welfare Institute, an advocacy organization. “We’ve never seen this kind of attack on the fundamental tenets of the most basic precepts of a law that has enjoyed long-standing bipartisan and public support for over 50 years.”
USDA’s animal care division employs more than 100 inspectors who conduct surprise inspections at licensed facilities at least every one to three years. In addition to the Animal Welfare Act, it is also tasked with enforcing the Horse Protection Act, which bans painful “soring” practices used to encourage the high-stepping gait of Tennessee walking horses. Inspection and enforcement records were available to the public online for years — something the USDA itself had touted as a valuable deterrent.
The agency stopped posting enforcement records in August 2016, replacing them with a numerical summary of activities. In February 2017, it abruptly removed all animal welfare and horse protection records from its website, citing litigation — an apparent reference to a show horse lawsuit. That blackout was assailed by animal protection groups and Congress, as well as some regulated industries and prominent conservatives.
But as the records became less visible, enforcement actions were also slowing. USDA judges began suspending all hearings over alleged animal welfare and horse protection violations in 2017 because of the potential impact of a Supreme Court case on the agency’s administrative law judges, Bernadette Juarez, deputy administrator of USDA’s animal care program, said in an interview.
(An agency spokeswoman said other federal agencies did the same, but two unions that represent administrative law judges said they knew of no others. “I do not believe that what USDA did was an appropriate response to a pending case,” said Marilyn Zahm, president of the Association of Administrative Law Judges.)
Some enforcement activities continued but at a much lower rate than in previous years. According to documents obtained in a FOIA request by the PETA Foundation, for example, USDA in March fined Delta Air Lines $10,000 for allowing a cat to escape its carrier and later die while in transport, and it sent an official warning to a dog breeder accused of 39 violations between 2014 and 2016, including giving a goat deworming product to canines.
But the agency says no administrative proceedings — complaints filed or hearings — took place between May 2017 and September of this year.
“The thing that’s pernicious about the drop in administrative complaints is that those are the ones that have the most deterrent value,” Kleiman said. “Those are the ones where USDA is trying to send a message not only to the respondent of the complaint, but to the general regulated community. To have this kind of drop says to the regulated community, we’re kind of on your side."
The agency disputes that, saying it is committed to ensuring humane treatment of animals. Following a ruling in the Supreme Court case in June, Juarez said nine horse protection hearings have been scheduled before November 2019, and about a dozen other suspended cases must also be reheard by the agency’s two judges.
Amid the hiatus in hearings, the agency decided early this year to reevaluate its enforcement process, Juarez said. Instead of sending warnings, which took an average of 365 days to be issued, “compliance specialists” now call alleged violators within 60 days of inspection to ask whether they’ve made changes, she said. Additional follow-up occurs, she said, though she did not detail its nature.
“We can’t rely on the enforcement process alone to achieve compliance,” Juarez said. “The entire goal here is to ensure compliance of all licensees as quickly as possible.”
But for the time being, those interactions are not reflected in any public reporting, and it is unclear what records exist that could be requested under FOIA. Juarez said the agency is still discussing how to “strike the right balance” between publicizing enforcement and cultivating “working relationships” with licensees.
The agency is also piloting the use of announced inspections with chronic violators, which Juarez said allows the scheduling of multiple visits and helps ensure relevant staff, including attending veterinarians, are present. Critics have lambasted the idea as an early warning system for bad actors who could clean up problems before inspections. Juarez said she “would be pleased” if that happened, because “that demonstrates they can comply, and we would expect them to sustain compliance.”
The changes have been welcomed by breeders, exotic animal exhibitors and other animal-related businesses who believed the USDA under the Obama administration was guilty of “overreach,” said Mindy Patterson, president of the Cavalry Group, a company that advocates on behalf of such businesses.
“We have regular communications with our members who are USDA licensees and hear frequently that their inspectors have just recently inspected and there seems to be a completely different tone,” Patterson said. “They seem to be willing to work as partners instead of adversaries.”
That is little assurance to animal rights groups that have relied on enforcement records to highlight animal mistreatment and say they are now less sure than ever how it is being recorded or policed.
“Is what they’re really trying to hide their own failure to enforce the law?” said Delcianna Winders, a vice president at the PETA Foundation. “They’re withholding information that would have allowed folks like PETA to step in and help these animals where the agency was failing to do so.”