By demanding that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part II)

HOW YOU CAN HELP ANIMALS!

By demanding that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part II)

As we said at the end of Part I, the new Rule's core rationale "can be summarized by two words: 'public oversight' -- the foundational premise upon which the new Rule rests."
 

That being the premise, traditional "brick and mortar" pet stores will not be reached by the new Rule; they will continue to be exempt from the AWA's federal licensing and inspection requirements because prospective buyers in actually seeing the animals for sale already provide the "public oversight" that the new Rule imposes.
 

It is the Internet vendors and other "unseen" sellers that must be licensed and inspected for "minimum standards of care" under the new Rule.
 

According to APHIS there are many exceptions granted by the new Rule because the nature of the exemption recipients' operations provides the requisite "public oversight." Included are animal rescue groups, public and private pounds and shelters, and humane societies. Also, those who breed and sell working dogs; sell rabbits for food, fiber and fur; breed to preserve bloodlines; children involved in 4H projects; operations that raise, buy, and sell farm animals for food, fiber, and fur; and businesses dealing only with fish, reptiles and other cold-blooded animals.
 

There are other exemptions: No license is required if someone sells dogs, cats, domestic pocket pets born and raised on one's own premises where buyers can physically observe them before or during purchase. Nor if one sells birds, rats, mice, amphibians, and reptiles.
 

Besides these and other exemptions the new Rule increases from 3 to 4 a seller's breeding females (dogs, cats or small exotic/wild pocket pets) before being required to be licensed and inspected under the AWA. These people are considered by APHIS as "hobby breeders," whose activities usually occur under circumstances and in places (such as private homes) where public oversight is present, thus removing the need for APHIS oversight. (APHIS already regulates wholesale commercial breeders.)
 

From the foregoing, it is obvious that the new Rule -- as most government administrative rules --  is lengthy and complicated. It raises at least as many questions as it answers. For example, must the actual purchaser himself observe the animal? Probably not; he can have someone else do it because there would still be public oversight. Must the observation be in a pet store? No, as long as the purchaser or someone acting on his behalf is physically present. Can breeders with 5 or more breeding females sell on the Internet? Yes, but a license is required. Can breeders with 5 or more breeding females sell on the Internet without a license? Yes, if the "physically seen" requirement is satisfied. Can a 4-or-less breeder sell on the Internet without a license? Yes.
 

The new Rule raises other questions, most of which are answered by recourse to the underlying principle for which the Rule was designed: Public oversight.
 

APHIS sums up the new Rule this way:
 

The entities affected by the rule are likely to be considered small. They are persons who sell their animals to any buyer who does not physically observe the animals prior to purchase and/or to take custody of the animals after purchase, such as sales conducted exclusively over the Internet.
 

Persons who maintain four or fewer breeding female dogs, cats, and/or small exotic or wild mammals will be exempt from the new licensing requirements.
 

Persons who derive less than $500 gross income from the sale of animals, other than dogs, cats, or wild or exotic animals will also be exempt from the new licensing requirements. In addition, some current licensees will no longer be required to be licensed due to the increase of the exemption threshold from three to four breeding females.
 

Doubtless, when the animal protection movement became aware of the proposed new Rule, and then its final version, there was great satisfaction. That satisfaction was understandable because, at least on the surface, it does provide some measure of protection not so much for the animals, but instead for the consumer. In other words, the new APHIS Rule is not an animal protection provision but instead a consumer protection measure-just like APHIS's recent Rule regarding the importation of puppies. Consumer protection is not synonymous with animal rights. 
 

Lest anyone misunderstand ISAR's position on the subject of commercial retail sales of companion animals, we want it clearly understood that we oppose them. So much so that we have prepared a Memorandum and a Model Statute designed to end such sales.
 

Part III, to be published on October 15, provides the highlights of each.

Demand that the USDA and APHIS modify its final Rule redefining "retail pet store" to prohibit sale of companion animals (Part I)

HOW YOU CAN HELP ANIMALS!

By demanding that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining "retail pet store" to prohibit sales of companion animals (Part I)

 

Among other duties delegated by Congress to USDA through APHIS is enforcement of the Animal Welfare Act (AWA).
 

ISAR, together with many other animal protection organizations, has long objected to the fundamental premise of the AWA: That humans can do virtually whatever they want to animals so long as it's done "humanely." To accomplish that specious goal, the principal task of APHIS has been to license certain categories of animal-related activities (e.g., puppy mills) and then inspect those activities for compliance with the "humane" criteria of the AWA.
 

For the purpose of this essay, ISAR is going to put aside all of our and others' complaints about AWA and APHIS, of which there are many, and focus solely on a recent development of crucial importance to companion animals and organizations such as ISAR whose mission is to protect those animals from abuse and exploitation. 

Since the Internet became widely used, it has been too easy for companion animals, mostly dogs, to be sold by means of the Internet. Not only to be sold, but to be sold sight-unseen.  

Everyone in the animal protection movement has heard heartbreaking stories of dogs (and other animals) purchased sight unseen through the Internet, then integrated into a loving family only to become ill from existing ailments, suffer, and often die.
 
In 2010 the USDA Office of Inspector General conducted an audit which revealed that 80% of the breeders who were sampled had not been inspected for the health of their animals or to ascertain if they were providing humane treatment.
 

The breeders got away with their deplorable conduct because even though they were Internet sellers they claimed to be "retail pet stores" as defined in the previous APHIS regulations. As such, there was no APHIS oversight, nor any consumer oversight.
 

To deal with this serious problem, in May 2012 APHIS published a new proposed Rule to bring retail sellers under its jurisdiction. In 90 days, some 210,000+ comments from the public were received. Also, some 213,000 petition signatures were submitted by organizations on each side of the issue.
 

In the process of initiating and developing the proposed and final Rule, APHIS produced hundreds of pages of information and commentary.

Finally, in June 2013 APHIS published a "Regulatory Impact Analysis and Final Regulatory Flexibility Analysis to accompany a new final Rule constituting a "Revision of the Definition of Retail Pet Store." Its Summary explains the Rule's rationale [all following italics and bracketed commentary has been supplied by ISAR].

APHIS is revising the definition of retail pet store and related regulations in order to ensure that the definition of retail pet store in the regulations is consistent with the Animal Welfare Act (AWA),thereby bringing more pet animals sold at retail under the protection of the AWA. [Accepting for sake of argument that AWA does in fact protect animals, in APHIS's view revising-actually enlarging -- the definition of "retail pet store" will increase its protection of animals.]

To ensure that animals sold at retail receive humane handling, care, and treatment, we are revising the definition of retail pet store so that it only includes those places of business or residence at which the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase. [This sentence is awkwardly expressed. It intends to say that under the new definition a "retail pet store" can only be a "business or residence at which theseller, buyer, and the animal available for sale are physically presentso that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase." As we shall see, this sentence is the core of APHIS's redefinition of "retail pet store." The idea is that unseen purchases of animals, primarily but not exclusively from the Internet, will be disallowed except under what APHIS considers narrow circumstances.]

We are also increasing from three to four the number of breeding female dogs, cats, and/or small exotic or wild mammals that a person may maintain on his or her premises and be exempt from licensing and inspection requirements if he or she sells only the offspring of those animals born and raised on his or her premises, regardless if the offspring of those animals are sold at retail or wholesale. [This exemption, as we'll explain later, is intended to foster the rationale of APHIS' redefinition].

In addition, we are removing the limitation on the source of gross income from the licensing exemption in the regulations for any person who does not sell or negotiate the purchase or sale of any wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats during any calendar year. [This change, as we'll explain later, is intended to foster the rationale of APHIS' redefinition].

This rule will primarily affect dog breeders who maintain more than four breeding females at their facilities, sell the offspring as pets, and whose buyers are not all physically present to observe the animals prior to purchase and/or to take custody of the animals after purchase. [To be explained later].

The rule may also affect some cat and rabbit breeders. While the scope of this rule applies to certain other animals, based on our experience,most retailers of animals other than dogs will meet the amended definition of retail pet store and continue to be exempt from regulation.

In other words, by redefining "retail pet store" to prevent sale of companion animals that are not physically seen by purchasers the retail pet store sellers and their operations are brought within the AWA and become subject to licensing and inspections.
 

Accepting for sake of argument that allowing most breeding and retail sale of companion animals is both moral and good public policy -- which ISAR emphatically denies -- APHIS's redefinition appears on the surface to serve a legitimate purpose. Assuming, of course, that APHIS's standards for "humane" treatment are high enough, and that there is a high level of licensing requirements and inspection. And penalties for violation. ISAR remains skeptical.
 

As to the policy, APHIS argued that the benefits of the new Rule outweigh its costs. Among the former, obviously, is that healthier pets will be sold and thus purchasers will be spared unnecessary heartbreak and expenses. More pets will survive illness, suffering, shelters, and death. The new Rule shifts responsibility for the animals' health from the unsuspecting buyer to the seller. Shelters and taxpayers will be spared the costs imposed by unscrupulous Internet sellers. Transfer of animal diseases, rabies for example, will be reduced.
 

That policy can be summarized by two words: "public oversight" -- the foundational premise upon which the new Rule rests.
 

Part II, to be published on October 1, will discuss the nuts and bolts of the new Rule. 

Help ISAR work toward the elimination of puppy mills and most retail sales of companion animals here and abroad

HOW YOU CAN HELP ANIMALS!

By helping ISAR work toward the elimination of puppy mills and most retail sales of companion animals here and abroad.

ISAR's supporters know how long we've been working to eliminate puppy mills and most retail sales of companion animals. (See www.isaronline.org)
 

Now, finally, even the United States Department of Agriculture has admitted that one aspect of the puppy mill problem -- the thousands of puppies shipped into this country from abroad (e.g., South Korea, China and Eastern Europe) -- present a serious problem. Until now, among them at least 25% have died in transit before even reaching this country.
 

In mid-August of this year, after many years of ignoring the problem, according to the Associated Press "[t]he U.S. Department of Agriculture approved a regulation . . . that, starting in 90 days, will require all puppies imported to the United States to be at least 6 months old, healthy, and up-to-date on vaccinations."

While those of us who work tirelessly for animal rights and know too well the scourge of puppy mills and most other breeders might welcome the USDA regulation the fact is that sadly it misses the mark.

For one thing, the government's concern is not for the puppies -- according to the AP usually less than 8 weeks old -- but for the American consumer. That's the wrong emphasis. Breeding of puppies generally and their importation in particular is a moral issue of animal rights, and is rooted in the philosophical premise that animals are akin to inanimate objects and thus can be treated as chairs and bowling balls (See Some Thoughts on the Rights of Animals). That's why the puppies are crammed into crates in the holds of intercontinental airplanes with little or no concern for their wellbeing. Protecting not the helpless puppies, but the American consumer.

Second, as a practical matter, even if the new regulation was acceptable morally and legally, which it is not, it is unenforceable given the general corruption and document forgeries that the breeders' countries are known for. To say the least, it is naïve to believe that puppy mill operators abroad (especially in countries whose populations eat dogs) will not falsify the documents required by the new USDA regulation. It requires that the puppies be "at least 6 months old, healthy, and up-to-date on vaccinations." There is simply no way overworked, and perhaps indifferent, USDA inspectors can get behind the paperwork to ascertain how old puppies are, whether they are "healthy" (whatever that means), or whether they ever received the vaccinations the regulation requires.

Third, those of us who labor in the animal protection movement know how unsuccessful USDA is in enforcing other laws within its jurisdiction pertaining to the welfare of animals. The new regulation will not be adequately enforced, if at all.

Fourth, the heralded fine of up to $10,000 presupposes that violators will be identified (in South Korea, China, and Eastern Europe countries!), fined, and then the fines actually collected -- a utopian assumption that defies reality. And even if the shippers do pay a fine, why would one think they will be deterred?

An official with a national humane organization has said that the new USDA regulation "eliminates the easy access to market that foreign breeders have had for years." Nonsense! Not only is that statement not so, but those who support the regulation have now given the shippers and USDA a fig leaf to cover the vile importation practice by making it appear that the problem has been dealt with. Indeed, an official with a national humane organization has said that by promulgating the regulation the organization and USDA "are taking steps in the right direction."

Sorry, but that's not the "right direction."

 There are only two "right directions."

If American puppy-buyers are determined to support breeders by purchasing dogs (and cats, for that matter), rather than by going to a shelter the least they can do morally is make certain that the animal has not been imported. There are more than enough homeless companion animals right here in the United States. More than more than enough.
 

Even more important, those purchasers should reconsider the entire breeding issue, and then support ISAR's efforts to prohibit puppy mills both abroad and in the United States.

ISAR's International Homeless Animals' Day Publicizes Pet Overpopulation on a Global Scale

Each year since 1992, on the third Saturday of August, ISAR's conceived and annual International Homeless Animals' Day® observances have proven a useful weapon in reducing suffering in the lives of homeless companion animals. As a result of International Homeless Animals' Day events, thousands upon thousands of shelter animals have been adopted into loving new homes and countless more have been spayed/neutered.

ISAR's International Homeless Animals' Day campaign serves as an opportunity for animal advocates from around the globe to band together on a special day and jump start new spay/neuter/adoption campaigns while rekindling existing programs in their communities that raise awareness about pet overpopulation.

Humane societies, animal protection organizations, and concerned individuals mark the Day with candlelight vigils, spay/neuter and microchip clinics, adopt-a-thons, pet walks, information stalls, and often host guest speakers; including elected officials, veterinarians, shelter personnel, media personalities, local celebrities, and many more.

For instance, this year participants at Defenders of Animals 20th Annual International Homeless Animals' Day Candlelight Vigil in Rhode Island will honor local police and fire personnel, city council members and State Sen. Dominick J.Ruggerio, for their commendable work protecting animals. Advancing the Interests of Animals in Southern California will feature special guest speakers: former LA animal cruelty prosecutor and humane education specialist, Bob Ferber, and Los Angeles Councilmember Paul Koretz representing the City's historic Fifth District.

Pawlooza, Canada, is gearing up once again to welcome more than 25,000 people and over 6,000 canines to their "ultimate dog party," while hosting dozens of animal rescue groups featuring companion animals available for adoption.

Taking place on International Homeless Animals' Day this year, Empty the Shelter Day will be the largest adoption event held across North Texas with an unprecedented number of municipal and non-profit animal shelters joining forces to offer free adoptions on Saturday, August 16, 2014.

ISAR's new website, www.homelessanimalsday.org, is now publicizing these and many other events taking place on International Homeless Animals' Day 2014. If you find there is not an International Homeless Animals' Day event in your area, ISAR invites you to light a candle in its 13th annual virtual online vigil. ISAR also encourages the public to visit their local animal shelters, become a volunteer, donate much needed supplies, sponsor a spay or neuter surgery, and/or promote ISAR's website, www.isaronline.org, to enlighten others about the pet overpopulation epidemic and its spay/neuter solution.

There has never been a more important time than now to make a positive difference in the lives of companion animals!

Working for enactment of ISAR's Model Euthanasia Statistics Statute

HOW YOU CAN HELP ANIMALS!

By working for enactment of ISAR's Model Euthanasia Statistics Statute

There are several ways to characterize the undeniable fact that uncountable and unwanted dogs and cats, puppies and kittens, are euthanized annually in the United States by shelters and other humane organizations: sad, disgusting, ghastly, horrendous, sickening, appalling, uncivilized, barbaric, horrific, and more. Words alone, of course, cannot begin to adequately describe the true nature and extent of the killing rooms.

Largely, the euthanasia phenomenon is attributable to the seemingly intractable problem of dog and cat overpopulation. Killing healthy dogs and cats, puppies and kittens, is a loathsome business, but apparently very necessary in the United States today as even the "No-Kill" forces reluctantly admit.

We have used the word "uncountable" above because no one, even shelters, know, or perhaps can ever know, how many dogs and cats are actually euthanized.

ISAR believes that as a matter of policy the public would be well-served -- both for informational and activism purposes -- if there were at least some reliable figures available on a state level of how many dogs and cats were euthanized annually.

Among other reasons, the numbers are bound to be shocking -- and that knowledge could, in turn, lead activists to work even harder to promote spay/neuter, adoption, and other policies aimed at reducing the unwanted population.

In furtherance of that goal, ISAR has prepared a model statute.

 

ISAR Model Euthanasia Statistics Statute

A bill providing for the compiling of certain information relating to the activities of public and private animal shelters, for additional duties of the Attorney General, and for penalties.

The legislature finds as follows: 

(1) That there is today in this jurisdiction a serious problem of dog and cat overpopulation which has consequences for the public fisc, health, safety, welfare, and environment.

(2) That the problem is dealt with principally by public and private animal shelters.

(3) That a principal method by which those shelters deal with the problem of dog and cat overpopulation is by euthanizing the unwanted animals.

(4) That the euthanizing of large numbers of unwanted dogs and cats annually causes public fiscal, health, safety, welfare, and environmental problems which the legislature may from time to time wish to address in legislation.

(5) That at present there are no reliable statistics of how many unwanted dogs and cats public and private shelters in this jurisdiction euthanize annually, and thus no concrete data upon which the legislature can base any legislative conclusions it may wish to draw in order to deal with the public fiscal, health, safety, welfare, environmental, and other issues presented by the euthanasia of unwanted dogs and cats.

The legislature of __________hereby enacts the following Euthanasia Statistics Statute:

Section 1. Definitions.

The following words and phrases when used in this act shall have the meanings given to them in this section unless the context clearly indicates otherwise.

"Animal shelter" includes all shelters for dogs and cats operated for their care, adoption, and euthanasia regardless of source of funds and whether for profit or not for profit.

"Office." The Office of Attorney General.

"Reported year." The calendar year for which a report is made under Section 2.

Section 2. Reporting requirements.

 a) Content -- All animal shelter operators shall for each calendar, no later than April 1 of the following year, render a written report to the Office. This report shall include the following information:

(1) The number of dogs, by breed, on hand as of January 1 of the reported year.

(2) The number of dogs, by breed, on hand as of 11:59 p.m. on December 31 of the reported year.

(3) The number of cats, by breed, on hand as of January 1 of the reported year.

(4) The number of cats, by breed, on hand as of 11:59 p.m. on December 31 of the reported year.

(5) The number of dogs redeemed by their owners and not returned during the reported year.

(6) The number of cats redeemed by their owners and not returned during the reported year.

(7) The number of dogs redeemed by their owners and returned during the reported year.

(8) The number of cats redeemed by their owners and returned during the reported year.

(9) The number of dogs adopted and not returned during the reported year.

(10) The number of cats adopted and not returned during the reported year.

(11) The number of dogs adopted and returned during the reported year.

(12) The number of cats adopted and returned during the reported year.

(13) The number of dogs euthanized during the reported year.

(14) The number of cats euthanized during the reported year.

(15) The number of dogs transferred or otherwise provided to dealers and the number of dogs transferred or otherwise provided to laboratories and biological supply houses during the reported year.
 

(16) The number of cats transferred or otherwise provided to dealers and the number of cats transferred or otherwise provided to laboratories and biological supply houses during the reported year.

(17) The number of dogs which have escaped, died naturally, or were subject to other disposition which shall be specified.

(18) The number of cats which have escaped, died naturally, or were subject to other disposition which shall be specified.

(19) The amount of public funds and the amount of private funds, and the sources thereof, which were expended in support of the activities which were the subject of the report.
 

b) Method of euthanasia. -- The report shall specify the method of euthanasia and the manner of disposition of the remains.
 

c) Form. -- The Office shall develop and provide a standard reporting form. The form shall include a statement that the maker of the report certifies it to be true and correct.

d) Fee. -- The office may charge a reasonable fee to cover the cost of collecting and processing the reports, which shall be available in print and online.

Section 3. Compilation.

The Office shall compile the reports on a statewide and on a county-by-county basis. Reports shall be maintained by the Office for at least ten years. Reports made under this statute shall be public records and shall be open to public inspection, and access to such reports shall not be denied pursuit to any exemption in this jurisdiction's Freedom of Information Act or similar law.

Section 4. Penalties

a) Failure to file. -- Failure to file a report under this statute constitutes [here include appropriate punishment under the jurisdiction's civil and/or criminal laws].

b) False statement. -- Any person or animal shelter who knowingly submits a false or fraudulent report or who supplies false or fraudulent information in a report commits [here include appropriate punishment under the jurisdiction's criminal laws].

Section 5. Rules and regulations.

 The Office of Attorney General shall promulgate rules and regulations to administer and enforce this Statute.

Section 6. Effective date.

This statute shall take effect immediately upon being duly approved in accordance with law.

* * *

Lest there be any question about the constitutionality of spay/neuter legislation in general, and the foregoing statute in particular, it can quickly be laid to rest. The Tenth Amendment to the Constitution of the United States gives the states (and thus political subdivisions like counties, cities, towns and villages) the power to enact virtually any laws they wish that are reasonably related to the public health, safety and welfare.   

Suggest to the Chairman of the federal House of Representatives' subcommittee on Livestock, Rural Development, and Credit that important changes be made to pending H.R. 4525

HOW YOU CAN HELP ANIMALS!

By suggesting to the Chairman of the federal House of Representatives' subcommittee on Livestock, Rural Development, and Credit that important changes be made to pending H.R. 4525.

On April 30, 2014, Representative James P. Moran (D-VA) introduced the "Traveling Exotic Animal Protection Act." Its stated purpose is "[t]o amend the Animal Welfare Act to restrict the use of exotic and non-domesticated animals in traveling circuses and exhibitions." (See the entire text below.) 

  

*** 

113th CONGRESS

2d Session

H. R. 4525

To amend the Animal Welfare Act to restrict the use of exotic and non-domesticated animals in traveling circuses and exhibitions.

---

IN THE HOUSE OF REPRESENTATIVES

April 30, 2014

Mr. Moran (for himself, Mr. Jones, Mr. Johnson of Georgia, Ms. Chu, Mr. Schiff, and Mr. Cárdenas) introduced the following bill; which was referred to the Committee on Agriculture

---

A BILL

To amend the Animal Welfare Act to restrict the use of exotic and non-domesticated animals in traveling circuses and exhibitions.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the "Traveling Exotic Animal Protection Act".

SEC. 2. FINDINGS.

Congress finds that-

(1) traveling circuses are detrimental to animal welfare due to the adverse effects of captivity and transport;

(2) due to severe confinement, lack of free exercise, and the restriction of natural behaviors, animals used in circuses suffer and are prone to health, behavioral, and psychological problems;

(3) the tricks that exotic and non-domesticated animals are forced to perform require extreme physical coercion techniques, including the restriction of food, the use of elephant hooks (objects used to control and punish elephants), electric shocks, metal bars, whips, and other forms of physical abuse;

(4) the welfare of animals subject to the conditions in traveling circuses, such as constant travel, limited facilities, long periods of restriction of movement, stress, and physical coercion, will inevitably be compromised, which can lead to increased risks to public safety;

(5) animals in traveling circuses pose an additional risk to public safety because such animals have wild instincts and needs and have demonstrated unpredictability;

(6) the use of collapsible, temporary facilities in traveling circuses increases the risk of escaping exotic and non-domesticated animals seriously harming workers and the public;

(7) traveling circuses bring people dangerously close to exotic and non-domesticated animals by displaying animals in inappropriate, uncontrolled areas that are not suited for the exhibition of such animals;

(8) it is not possible to provide exotic and non-domesticated animals with facilities sufficient to maintain the optimum physical and mental health of the animals because of the suffering caused to the animals by the nature of circuses, in which restriction of movement, separation from natural groupings, restriction of food and water, and physical abuse are prevalent;

(9) due to the mobile and transitory nature of traveling circuses, law enforcement authorities cannot properly monitor the conditions of the animals or follow up on previous infractions by traveling circuses; and

(10) restricting the use of exotic and non-domesticated animals in circuses is the most cost-effective and efficient way to safeguard both animal welfare and public safety.

SEC. 3. USE OF EXOTIC OR WILD ANIMALS IN TRAVELING CIRCUSES AND EXHIBITIONS.

Section 13 of the Animal Welfare Act (7 U.S.C. 2143) is amended by adding at the end the following new subsection:

"(i)(1) No exhibitor may allow for the participation of an exotic or wild animal (including a non-human primate) in an animal act if, during the 15-day period preceding such participation, such animal was traveling in a mobile housing facility.

"(2) The restriction under paragraph (1) shall not apply to the use of an exotic or wild animal (including a non-human primate)-

"(A) in an exhibition at a non-mobile, permanent institution or facility, including an accredited zoo or aquarium;

"(B) as part of an outreach program for educational or conservation purposes by an accredited zoo or aquarium, if the animal used for such purposes is not kept in a mobile housing facility for more than 12 hours a day;

"(C) by a university, college, laboratory, or other research facility registered with the Secretary pursuant to section 6;

"(D) in film, television, or advertising if such use does not involve a live public exhibition; or

"(E) in a rodeo.

"(3) A traveling circus or exhibitor that fails to comply with this subsection shall be subject to the penalties provided for under section 19.".

SEC. 4. EFFECTIVE DATE.

The amendments made by this Act shall take effect on the date that is one year after the date of the enactment of this Act.

***
 

Originally, there were five co-sponsors, now there are 14: Rep. Walter B. Jones, Jr. [R-NC-3], Rep. Henry C. "Hank," Johnson Jr. [D-GA-4], Rep. Judy Chu [D-CA-27], Rep. Adam B. Schiff [D-CA-28], Rep. Tony Cardenas [D-CA-29], Rep. Jared Polis [D-CO-2], Rep. Sam Farr [D-CA-20], Rep. Jerry McNerney [D-CA-9], Rep. Anna G. Eshoo [D-CA 18], Rep. Jackie Speier [D-CA-14], Rep. Eleanor Holmes Norton [D-DC-At Large], Rep. Raul M. Grijalva [D-AZ-3], Rep. Colleen W. Hanabusa [D-HI-1], Rep. Lee, Barbara [D-CA-13].

ISAR is pleased to note that Section 2 contains extensive "Findings," the importance of which cannot be overemphasized. (See page 8 of ISAR's Model Statute Prohibiting Commercial Retail Sales Of Dogs And Cats Monograph) The bill's Findings are an impressive catalogue of reasons why animals in traveling circuses suffer, why they are a danger to the public, and thus why the proposed law is both moral and necessary. The last Finding, number 10, concludes with the statement that "restricting the use of exotic and non-domestic animals in circuses is the most cost-effective and efficient way to safeguard both animal welfare and public safety."

Although ISAR applauds the bill's underlying assumption that as a general proposition circus animals are treated cruelly and need protection, we strongly disagree with the bill's solution: mere regulation of their conditions, not abolition of their use. Indeed, a regrettable irony is that the bill's findings make a conclusive case for abolition, but then Section 3 ignores that case and simply imposes regulations on the suffering animals' exploited use. In other words, the bill is a typical example of tweaking practices that harm animals instead of banning them outright.

ISAR supports such a ban, and urges our supporters to communicate to the bill's sponsors and the committee's chairman that immediately banning the use in all circuses of exotic and wild animals, including non-human primates, is morally and practically required if the bill's own findings are to be believed and not merely window dressing meant to satisfy the circuses and their lobbyists and mollify animal rights activists.

Reporting to the Federal Bureau of Investigation any information that comes your way in any manner concerning "Crush Videos."

HOW YOU CAN HELP ANIMALS!

By reporting to the Federal Bureau of Investigation any information that comes your way via the Internet, Email, or in any other manner concerning "Crush Videos."

  

In April 2010 the Supreme Court of the United States, by a vote of 8-1, in the case of United States v. Stevens, held unconstitutional the federal statute (18 U.S.C. Section 48) which made it a crime to knowingly create, sell, or possess "a depiction of animal cruelty."

ISAR had submitted an amicus curiae ("friend-of-the-Court") brief in the case and our Chairman, Professor Henry Mark Holzer, presented two audio commentaries about it--one after our brief was filed and the other following oral argument.

The Court's eight member majority ruled that the statute was "overbroad," meaning that the law could be interpreted to suppress speech of activities involving animals which, though distasteful to many (like hunting), were legal. In other words, the Court objected to the potentially broad sweep of the statute, not its laudable intention to protect animals from certain forms of unquestionable cruelty by suppressing depictions of that cruelty.

In its opinion, the Supreme Court very nearly invited Congress to craft a statute narrowly reflecting the federal legislature's substantial interest in curbing cruelty to animals that took the form of crush videos--a statute which would not be overbroad, but targeted more specifically to the goal that all members of the Court shared: ending the scourge of crush videos (and dog fighting, and similar barbaric conduct).

Accepting that invitation, effective December 9, 2010, Congress promptly reenacted Section 48 as the Animal Crush Video Prohibition Act of 2010. In essence, the statute now criminalizes knowing conduct that creates, sells, markets, advertises, exchanges, or distributes an animal crush video that:

1. Depicts actual conduct in which one or more non-human animals is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily harm, and
2. Is obscene. [Section 48 is actually more detailed than this. For example it specifies not only "non-human animals," but also "birds, reptiles, or amphibians." The entire statute appear below.1]

We'll spare you the gruesome details of why Ashley Nicole Richards and Brent Justice, who made crush videos, were indicted in the United States District Court, Southern District of Texas, on (1) four counts of creation and one count of distribution of animal crush videos in violation of 18 U.S.C. Section 48, (2) one count of engaging in the business of selling or transferring obscene matter in violation of 18 U.S.C. 1466(a), and (3) one count of production of transportation of obscene matters for sale or distribution in violation of 18 U.S.C. Section 1465.

Taking a page from the defense's playbook in the Stevens case, in the federal trial court Richards and Justice asked the judge to dismiss the indictment because Section was an unconstitutional abridgement of their "free speech."

The federal district judge agreed, primarily because the defendants' "free speech" was not of a type the courts have considered unprotected, such as obscenity and speech incidental to criminal conduct.

On appeal, to its credit the government argued that as written new Section 48 punished only the type of speech that is unprotected and thus the law was not overbroad, as had been the prior Section 48 ruled unconstitutional in the Stevens case.

On June 13, 2014, a three-judge panel of the United States Court of Appeals for the Fifth Circuit unanimously reversed the district court.

The court began its analysis by observing that for new Section 48(a) (2) to apply animal crush videos must be "obscene," a crucial element of the crime but not one defined in the statute itself.

To provide that definition, the Court of Appeals accepted the one articulated by the United States Supreme Court in the 1973 obscenity case of Miller v. California.

Under that test, the Court of Appeals ruled that the requisite "obscene" element of the statute would be satisfied by "the [defendants'] wanton torture and killing that, as demonstrated by federal and state animal cruelty laws, society has deemed worthy of criminal sanction."

The court's reversal sent the case back to the federal district court for trial, which is yet to occur.

Under the facts, the defendants should be convicted. If they are--either by trial or plea--they should be sentenced to the maximum 7 years imprisonment on the Section 48 counts alone, with further punishment imposed on the two obscenity counts of the indictment. Fines should be imposed at the maximum amount allowed by law.

It should be noted that in upholding Section 48--thus condemning wanton torture and killing of animals, and speaking approvingly of federal and state animal cruelty laws--the Court of Appeals has struck a significant blow for animal rights, albeit in the limited arena of unspeakable human conduct.

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[1] 18. U.S.C. Section 48 (2010)

(a) Definition.--In this section the term "animal crush video" means any photograph, motion-picture film, video or digital recording, or electronic image that--

(1) depicts actual conduct in which 1 or more living non-human mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury (as defined in section 1365 and including conduct that, if committed against a person and in the special maritime and territorial jurisdiction of the United States, would violate section 2241 or 2242); and

(2) is obscene. 

(b) Prohibitions.--

(1) Creation of animal crush videos.--It shall be unlawful for any person to knowingly create an animal crush video, if--

(A) the person intends or has reason to know that the animal crush video will be distributed in, or using a means or facility of, interstate or foreign commerce; or

(B) the animal crush video is distributed in, or using a means or facility of, interstate or foreign commerce. 

(2) Distribution of animal crush videos.--It shall be unlawful for any person to knowingly sell, market, advertise, exchange, or distribute an animal crush video in, or using a means or facility of, interstate or foreign commerce.

(c) Extraterritorial application.--Subsection (b) shall apply to the knowing sale, marketing, advertising, exchange, distribution, or creation of an animal crush video outside of the United States, if--

(1) the person engaging in such conduct intends or has reason to know that the animal crush video will be transported into the United States or its territories or possessions; or

(2) the animal crush video is transported into the United States or its territories or possessions.

(d) Penalty.--Any person who violates subsection (b) shall be fined under this title, imprisoned for not more than 7 years, or both.

(e) Exceptions.--

(1) In general.--This section shall not apply with regard to any visual depiction of--

(A) customary and normal veterinary or agricultural husbandry practices;

(B) the slaughter of animals for food; or

(C) hunting, trapping, or fishing.

(2) Good-faith distribution.--This section shall not apply to the good-faith distribution of an animal crush video to--

(A) a law enforcement agency; or

(B) a third party for the sole purpose of analysis to determine if referral to a law enforcement agency is appropriate.

(f) No preemption.--Nothing in this section shall be construed to preempt the law of any State or local subdivision thereof to protect animals.