Brooks Animal Law Digest

President Biden signed House Resolution 2617, the “Consolidated Appropriations Act, 2023” which contains several animal-related provisions, including:

• removal of the Food and Drug Administration Act requirement for animal testing in drug development;
• an additional $4 million in funding for the USDA Animal and Plant Health Inspection Service (APHIS) Animal Care Division;
• reiteration of the prohibition on teachable moments and a requirement that APHIS inspectors document all observed Animal Welfare Act non-compliances;
• more than $4 million for Horse Protection Act enforcement, in part to combat horse soring;
• strengthening the Horseracing Integrity and Safety Act;
• a directive to the U.S. Fish and Wildlife Service (USFWS) to continue revising the trophy hunting import permitting process, and to report back to Congress about any additional actions regarding protecting lions and other iconic species that are hunted for trophies to ensure the conservation and survival of those species;
• the Driftnet Modernization and Bycatch Reduction Act, which calls for phasing out the use of large harmful mesh drift gillnets that trap and kill large numbers of non-target marine species, including whales, dolphins, and sea lions in federal waters;
• a last-minute policy rider that gives the lobster fishing industry six more years to avoid key conservation measures aimed at preventing right whales from becoming entangled in fishing gear.

More details can be found in the associated bill summaries and explanatory statements.

Washington House Bill 1097 would prohibit the sales of cosmetics that have been developed or produced using animal testing. If enacted, it will become enforceable January 1, 2024.

Illinois House Bill 5861 would amend the definition of “dog dealer” in the state’s Animal Welfare Act to exclude the retail sales of dogs by individuals. The bill appears to try to create an exemption to the state’s retail pet sales ban enacted in 2021 and has been referred to the House Rules Committee.

Minnesota House File 23, entitled the “Safe Workplaces for Meat and Poultry Processing Workers Act,” would establish multiple requirements to promote safer work standards and rights for meatpacking employees. Notably, the bill would establish a “meatpacking industry worker rights coordinator” who would have full access to all meatpacking operations in the state and a right for meat-processing workers to refuse to work under conditions that a worker “reasonably believes would expose the worker, other workers, or the public to an unreasonable risk of illness or injury, or exposure to illness or injury, including the infectious disease known as COVID-19.” The bill has been referred to the House Committee on Labor and Industry Finance and Policy.

Missouri House Bill 576 would create the felony offense of “interference with the transportation of livestock.” The bill has not yet been assigned to a committee.

Washington House Bill 1145 would impose multiple restrictions on commercial vessels and the tourism industry to better protect orcas and other marine mammals from vessel strikes and human interference. The bill has been referred to the House Committee on Agriculture and Natural Resources.

Washington House Bill 1157 would prohibit the display of wild and exotic animals, including but not limited to large cats, nonhuman primates, wolves, cetaceans, elephants, camels, crocodilians, marsupials, snakes and reptiles, hippopotamuses, rhinoceroses, giraffes, zebra, deer, hyenas, skunks, weasels, otters, badgers, raccoons, coatis, anteaters, sloths, armadillos, mongoose, civets, genets, raptors, birds of prey, and bears, for public amusement. The bill has been referred to the House Committee on Agriculture and Natural Resources.

Kentucky Senate Bill 56 would prohibit the retail sales of dogs, cats, and rabbits. The bill has been referred to the Senate Committee on Committees.

Oklahoma Senate Bill 181 would implement remote meat and poultry inspections, subject to approval by the U.S. Department of Agriculture. If enacted, the bill would apply exclusively to meat and poultry products sold in intrastate commerce and would become effective November 1, 2023. The bill has not yet been assigned to a committee.

The Surface Transportation Board (Board) issued a decision that directs Union Pacific Railroad Company (UP) to carry out specific service commitments to Foster Poultry Farms (Foster Farms) following Foster Farms’ petition for emergency service resulting from UP’s reduced delivery of animal feed. Foster Farms feeds roughly one million cattle and 50 million chickens requiring nine trains of feed per month and had to file a similar petition with the Board in June. Foster Farms claims it has cut off feed to the dairy cattle to preserve corn for feeding the chickens, which are more susceptible to starvation, but that current feed stocks only would last through January 7, 2023. The Board issued a decision ordering UP to deliver specific train loads of animal feed to Foster Farms on a specified time schedule to avert a potential significant loss of livestock in California. 

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) announced its plan to strengthen Animal Welfare Act (AWA) regulations for:

• the handling of wild and exotic animals for exhibition;
• the training of personnel involved in the handling of wild and exotic animals; and,
• the establishment of environmental enrichment standards for all regulated animals.

APHIS’ announcement comes only thirteen days after President Biden signed the Big Cat Public Safety Act, which, in pertinent part, prohibits AWA exhibitors from offering any species of big cat (with the exception of cheetahs) for public contact. APHIS will accept public comments through March 10, 2023.

President Biden signed Senate Bill 1466, the “Saline Lake Ecosystems in the Great Basin States Program Act of 2022,” which authorizes the Director of the U.S. Geological Survey, in conjunction with the Director of the U.S. Fish & Wildlife Service, to establish a regional program to assess, monitor, and benefit the hydrology of saline lakes in the Great Basin and the migratory birds and other wildlife dependent on those habitats. The bill was sponsored by Senators Jeff Merkley, Mitt Romney, Jacky Rosen, Catherine Cortez Masto, Ron Wyden, and Dianne Feinstein.

President Biden signed House Resolution 5973, the “Great Lakes Fish and Wildlife Restoration Reauthorization Act of 2022.” The Great Lakes Fish and Wildlife Restoration Act has provided federal funding to research and restoration projects in the Great Lakes Basin since 1998. The bill was sponsored by Representatives Debbie Dingell, David Joyce, Darin LaHood, and Paul Tonko.

President Biden signed House Resolution 2617, the “Consolidated Appropriations Act, 2023” which contains several animal-related provisions, including:

• removal of the Food and Drug Administration Act requirement for animal testing in drug development;
• an additional $4 million in funding for the USDA Animal and Plant Health Inspection Service (APHIS) Animal Care Division;
• reiteration of the prohibition on teachable moments and a requirement that APHIS inspectors document all observed Animal Welfare Act non-compliances;
• more than $4 million for Horse Protection Act enforcement, in part to combat horse soring;
• strengthening the Horseracing Integrity and Safety Act;
• a directive to the U.S. Fish and Wildlife Service (USFWS) to continue revising the trophy hunting import permitting process, and to report back to Congress about any additional actions regarding protecting lions and other iconic species that are hunted for trophies to ensure the conservation and survival of those species;
• the Driftnet Modernization and Bycatch Reduction Act, which calls for phasing out the use of large harmful mesh drift gillnets that trap and kill large numbers of non-target marine species, including whales, dolphins, and sea lions in federal waters;
• a last-minute policy rider that gives the lobster fishing industry six more years to avoid key conservation measures aimed at preventing right whales from becoming entangled in fishing gear.

More details can be found in the associated bill summaries and explanatory statements.

Washington Senate Bill 5104 would require use of new technology for improved surveying of Puget Sound marine shorelines to aid in the recovery of threatened and endangered species of salmon, orcas, and marine birds. The bill has been referred to the Senate Committee on Environment, Energy & Technology.

Virginia House Bill 1468 would prohibit veterinary service providers from charging more than $20 for rabies vaccination or from requiring additional services in conjunction with the rabies vaccine. Committee assignment is pending.

Washington House Bill 1097 would prohibit the sales of cosmetics that have been developed or produced using animal testing. If enacted, it will become enforceable January 1, 2024.

Montana LC 4278 would revise non-resident license laws related to hunting mountain lions by exempting non-residents from obtaining a license to use dogs to pursue mountain lions if they are the “nonpaying guest of a resident” who holds a relevant license. The bill has been referred to the Senate Committee on Fish and Game.

Illinois House Bill 5861 would amend the definition of “dog dealer” in the state’s Animal Welfare Act to exclude the retail sales of dogs by individuals. The bill appears to try to create an exemption to the state’s retail pet sales ban enacted in 2021 and has been referred to the House Rules Committee.

Maine House Bill 32 would amend the state’s endangered and threatened species list to remove the box turtle and rapids clubtail, and add the Ashton’s cuckoo bumble bee, saltmarsh sparrow, bank swallow, Bicknell’s thrush, blackpoll warbler, cliff swallow, margined tiger beetle, and the tricolored bat. It has been referred to the Committee on Inland Fisheries and Wildlife.

Minnesota House File 23, entitled the “Safe Workplaces for Meat and Poultry Processing Workers Act,” would establish multiple requirements to promote safer work standards and rights for meatpacking employees. Notably, the bill would establish a “meatpacking industry worker rights coordinator” who would have full access to all meatpacking operations in the state and a right for meat-processing workers to refuse to work under conditions that a worker “reasonably believes would expose the worker, other workers, or the public to an unreasonable risk of illness or injury, or exposure to illness or injury, including the infectious disease known as COVID-19.” The bill has been referred to the House Committee on Labor and Industry Finance and Policy.

Minnesota House File 40 would allow bear hunters to leave portable stands overnight in wildlife management areas, with the caveat that unoccupied portable stands left overnight may be used by any member of the public. The bill has been referred to the House Committee on Environment and Natural Resources Finance and Policy.

Missouri Senate Bill 382 would amend the state’s animal-related provisions in multiple ways, including by prohibiting breed-specific dogs-running-at-large laws, allowing tax credits for individuals who adopt a companion animal from a shelter, and requiring animal research facilities to establish an adoption program for dogs and cats. The bill has not yet been assigned to a committee.

Missouri House Bill 576 would create the felony offense of “interference with the transportation of livestock.” The bill has not yet been assigned to a committee.

Missouri House Bill 630 would modify provisions relating to the confiscation of animals in multiple ways, including by limiting who may confiscate abused or neglected animals, and by prohibiting the sterilization of confiscated animals prior to final disposition. The bill has not yet been assigned to a committee.

Montana LC 3412 would allow hunters to use dogs to pursue black bears outside of federally designated grizzly bear recovery zones. The bill has not yet been assigned to a committee.

Kentucky House Bill 103 broadens the definition of animal torture, elevates the crime from a misdemeanor to a felony, and expressly excludes declawing, tail docking, and ear cropping from the definition. The bill has been assigned to the House Committee on Committees.

Kentucky House Bill 117 would allow certain U.S. Department of Agriculture-exempted poultry processers to sell to end consumers on a farm, farmers market, or at a roadside stand. The bill is currently pending in the House Committee on Committees.

New Hampshire Senate Bill 23 would establish a committee to study federal laws regarding meat processing and inspection and best practices for farms looking to process for sale meat from non-amenable species, defined by the U.S. Department of Agriculture to include bison, domestic rabbits, domestic deer, pheasant, quail, and captive raised waterfowl. The bill has been referred to the Senate Commerce Committee.

Texas House Bill 1191, entitled the “Chicken Freedom Act,” would prohibit municipalities from enacting ordinances that do not allow residents to keep six or fewer chickens. The bill has not yet been assigned to a committee.

Washington Senate Bill 5161 would end the production and manufacture of fur products in Washington by 2024. The bill has been referred to the Senate Committee on Agriculture, Water, Natural Resources & Parks.

Washington House Bill 1145 would impose multiple restrictions on commercial vessels and the tourism industry to better protect orcas and other marine mammals from vessel strikes and human interference. The bill has been referred to the House Committee on Agriculture and Natural Resources.

Washington House Bill 1157 would prohibit the display of wild and exotic animals, including but not limited to large cats, nonhuman primates, wolves, cetaceans, elephants, camels, crocodilians, marsupials, snakes and reptiles, hippopotamuses, rhinoceroses, giraffes, zebra, deer, hyenas, skunks, weasels, otters, badgers, raccoons, coatis, anteaters, sloths, armadillos, mongoose, civets, genets, raptors, birds of prey, and bears, for public amusement. The bill has been referred to the House Committee on Agriculture and Natural Resources.

Kentucky Senate Bill 56 would prohibit the retail sales of dogs, cats, and rabbits. The bill has been referred to the Senate Committee on Committees.

Nebraska Legislative Bill 117 would amend provisions relating to the Independent Processor Assistance Program under the Nebraska Meat and Poultry Inspection Law. The bill has been referred to the Agriculture Committee.

Oklahoma Senate Bill 181 would implement remote meat and poultry inspections, subject to approval by the U.S. Department of Agriculture. If enacted, the bill would apply exclusively to meat and poultry products sold in intrastate commerce and would become effective November 1, 2023. The bill has not yet been assigned to a committee.

Texas House Bill 1203 would amend the state’s cruelty to nonlivestock animals’ law by expanding the mens rea to include “criminal negligence.” If enacted, the bill will take effect on September 1, 2023.

Virginia House Bill 1577 would require any person who confines a dog or cat for active signs of rabies or suspected rabies to allow the Virginia Department of Health access to the animal during its confinement. Committee referral is still pending.

Kansas House Bill 2006 would amend existing hunting laws to expressly prohibit “the rays of a spotlight, headlight or other artificial light” for purposes of locating or taking any wildlife. The bill has been referred to the House Committee on Agriculture and Natural Resources.

Minnesota Senate File 61 would expand the fair labor standards for agricultural and food processing workers and establish civil causes of action and penalties for employer violations. The bill has been referred to the Senate Labor Committee.

William Burkhart, an investor in drug research and development company Inotiv Inc., filed a derivative suit against several of the company's officers and directors, accusing them of failing to disclose that a recently acquired subsidiary, Envigo RMS Holding Corp., was under investigation by the U.S. Department of Justice (DOJ) for Animal Welfare Act violations. Envigo made headlines last year after the DOJ filed suit over the alleged mistreatment of beagles at its Cumberland, Virginia research facility, resulting in the surrender of more than 4,000 dogs. Burkhart alleges that Inotiv issued a false proxy statement that omitted information about Envigo being on notice from several governmental agencies about existing animal welfare violations when soliciting stockholder votes for the merger. Plaintiff is seeking damages, restitution, attorney fees, a jury trial and directives for Inotiv to improve and reform its corporate governance and internal procedures.

Animal Partisan filed a private criminal complaint against Leidy’s, Inc. (“Leidy”), a Pennsylvania pork producer, over the alleged abuse of pigs during delivery for slaughter. The complaint asks the court to charge the company and its driver with violation of Pennsylvania’s animal cruelty law in connection with an event documented by a U.S. Department of Agriculture inspector who allegedly witnessed the Leidy driver beating pigs with a paddle.  

The U.S. Fish and Wildlife Service (FWS) announced that it has received applications for permits to conduct activities intended to enhance the propagation or survival of multiple protected species of bats, insects, and mollusks under the Endangered Species Act (ESA). FWS is accepting public comments on the applications through January 26, 2023.

The U.S. Fish and Wildlife Service (FWS) announced its proposal to designate 275,647 acres on the islands of Kaua`i, Maui, and Hawai`i as critical habitat for the federally threatened `i`iwi, a bird native to the Hawaiian Islands, under the Endangered Species Act. FWS will be holding a public informational meeting and hearing on February 10, 2023 and will accept public comments through February 27, 2023.

The National Marine Fisheries Service (NMFS) announced a proposed rule to amend the Seafood Import Monitoring Program established pursuant to the Magnuson-Stevens Fishery Conservation and Management Act. The rule would add species or groups of species to the Program along with making several other amendments relating to records and responsibilities. NMFS will accept public comments on the proposed rule change through March 28, 2023.

The U.S. Fish & Wildlife Service (FWS) announced its findings on the listing status for multiple species. It found that it is not warranted to delist the Bone Cave harvestman, a protected species of spider, or list the Brandegee's buckwheat, Chowanoke crayfish, Cisco milkvetch, stage station milkvetch, Isely's milkvetch, Columbia Oregonian snail, or the Rye Cove cave isopod under the Endangered Species Act at this time.

The National Marine Fisheries Service (NMFS) received a request from Carnival Corporation & GHD for the renewal of their incidental harassment authorization (IHA) to take marine mammals incidental to pile driving for the Long Beach Cruise Terminal improvement project at the Port of Long Beach, California. NMFS will accept public comments on renewal of the IHA through January 13, 2023.

The Surface Transportation Board (Board) issued a decision that directs Union Pacific Railroad Company (UP) to carry out specific service commitments to Foster Poultry Farms (Foster Farms) following Foster Farms’ petition for emergency service resulting from UP’s reduced delivery of animal feed. Foster Farms feeds roughly one million cattle and 50 million chickens requiring nine trains of feed per month and had to file a similar petition with the Board in June. Foster Farms claims it has cut off feed to the dairy cattle to preserve corn for feeding the chickens, which are more susceptible to starvation, but that current feed stocks only would last through January 7, 2023. The Board issued a decision ordering UP to deliver specific train loads of animal feed to Foster Farms on a specified time schedule to avert a potential significant loss of livestock in California. 

The U.S. Fish & Wildlife Service (FWS) is proposing to revise the application form for Designated Port Exception Permits, which are required for lawful import or export of wildlife at a port other than a required designated port or authorized border. The agency proposes to resume requiring the applicant’s Social Security Number or Employer Identification Number. FWS uses this information during law enforcement investigations to ensure the identities of individuals are accurate. FWS is accepting public comments on the proposed information collection through January 30, 2023.

The National Oceanic and Atmospheric Administration (NOAA) announced a final regulatory amendment to the National Marine Sanctuaries regulations. The new rule is effective February 6, 2023.

The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) announced its plan to strengthen Animal Welfare Act (AWA) regulations for:

• the handling of wild and exotic animals for exhibition;
• the training of personnel involved in the handling of wild and exotic animals; and,
• the establishment of environmental enrichment standards for all regulated animals.

APHIS’ announcement comes only thirteen days after President Biden signed the Big Cat Public Safety Act, which, in pertinent part, prohibits AWA exhibitors from offering any species of big cat (with the exception of cheetahs) for public contact. APHIS will accept public comments through March 10, 2023.