APHIS RETAIL PET SELLERS RULE: Does APHIS have authority to enact this rule?

Re:  Docket ID:  APHIS-2011-0003, Animal Welfare; Retail Pet Stores and Licensing Exemptions

APHIS issued the Notice of Proposed Rulemaking May 16, 2012. The final rule was published in the federal register September 18, 2013 and goes into effect November 18, 2013. This Rule would extend APHIS authority to include large segments of the retail pet trade as regulated under the Animal Welfare Act (AWA), including pet species as dogs, cats, guinea pigs, rabbits, and hamsters, among others. The overarching intent of the revision is to regulate sight unseen retail pet sales, which, without proof, APHIS claims have dramatically increased as a result of growing Internet usage.

In May, 2010, APHIS received severe criticism from the USDA Office of Inspector General (OIG) regarding lax enforcement of currently licensed dog breeders in the report, “Inspections of Problematic Dealers”. In June 2010 APHIS announced a plan to improve consistency in Animal Care inspectors’ approach for inspections, provide more complete guidance to its employees, and improve regulation of dog dealers particularly those who are repeat offenders.  As part of the Longer Term Actions included in the original Enhanced Animal Welfare Act Enforcement Plan in May 2010 APHIS set the following goal: “Develop regulations regarding Internet sales. This will transpire once legislation is passed to close a loophole in the law and enable APHIS to regulate this area of the industry.”  
http://www.usda.gov/oig/webdocs/33002-4-SF.pdf 

It is very clear APHIS believed this measure was specifically dependent upon legislation; however, unwilling to wait for Congressional action and pressured by the Humane Society of the United States (HSUS), APHIS added the following comment to their enforcement plan in a report which was undated but, from text dates, obviously compiled after May 31, 2011: “USDA has determined that it has legislative authority to regulate Internet sales. A proposed rule will be submitted for departmental clearance in spring 2011 and published in the Federal Register for public comment in fall 2011.”
http://www.aphis.usda.gov/newsroom/content/2010/05/AWA_enforcement_plan.shtml 

The retail pet store revision would not improve enforcement of substandard current license holders, the major focus of the original OIG report, but would instead regulate many retailers, hobbyists, rescues, and small business entities far above APHIS claims of closing a so-called “Internet loophole” and restoring the original intent of Congress for administration of the AWA.

It is our impression that the current APHIS administration finds it immaterial that the existing definition of retail pet store and method of enforcement has been upheld in a court of law. Decided January 14, 2003, Doris Day Animal League (DDAL) v. Ann M. Veneman (Secretary, USDA) provides compelling arguments for retaining the construct between wholesale and retail sellers. The issue at hand was to determine if the traditional exemption under pet retail store definition, which exempted breeders who sell dogs as pets from their residences, was valid.  In his opinion, Circuit Judge Randolph noted “Hundreds of thousands of dog breeders throughout the United States raise and sell puppies from their homes. Still it is true that in the years since passage of the Act and the Secretary's adoption of the regulation, Congress has not altered the regulatory definition of ‘retail pet store’ although it has amended the act three times.”  At that time USDA declined to amend the definition in light of the potential invasions of privacy that would result if federal inspectors began enforcing regulations in private homes.  USDA also maintained if they were to regulate these dealers in addition to state and local officials, it would clearly not be the most efficient use of their resources.

Efficient use of resources is just as relevant today, if not more so, considering the agency’s current budget challenges and the general state of the nation’s economy. The proposed rule threatens to exponentially increase the number of entities requiring licensure. Without a corresponding increase in inspection staff, the ability of APHIS to effectively enforce the AWA will be compromised.   Besides not being economically feasible, there are many state and local laws and ordinances already in place to monitor the welfare and housing for animals owned by residential retail breeder/sellers.

Revisiting Judge Randolph’s opinion regarding Congressional intent, he stated, “While the regulation's definition of ‘retail pet store’ does not exactly leap from the page, there is enough play in the language of the Act to preclude us from saying that Congress has spoken to the issue with clarity. From what we can make out, Congress has paid little attention to the question posed in this case. Still, it is true that in the years since passage of the Act and the Secretary's adoption of the regulation, Congress has not altered the regulatory definition of ‘retail pet store’ although it has amended the act three times. One line of Supreme Court cases holds that ‘when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the “congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one intended by Congress.”’ Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 275 (1974)). The quotation fits this case perfectly.” http://www.cadc.uscourts.gov/internet/opinions.nsf/A30825ECFA88D2C985256F82005F4853/$file/01-5351a.txt

We agree with the Court’s decision and do not think that several decades ago, Congress ever intended USDA to enforce the AWA inside people’s homes.  However, now that the current APHIS administration has elected to make a determination granting themselves additional authority of such magnitude, we believe Congress is now obligated to review this issue, and should do so as quickly as possible.

Legislation Briefs and APHIS Rule Update October 14, 2013

SAOVA Friends,

Since APHIS announced the Final Retail Pet Store Rule a number of commentaries have surfaced as groups and individuals attempt to interpret this rule and provide guidance. The overarching intent of the revision is to regulate sight unseen sales which APHIS claims have dramatically increased as a result of growing internet usage. APHIS has determined that their mission to enforce regulation of listed animal species under the Animal Welfare Act (AWA) now includes those sold in retail as well as commercial markets.

The revised language as set in the APHIS rule now has the force and effect of law. Anything else stated by APHIS staff in response to questions should only be considered as an explanation of pending policy. These policies are not only open to interpretation by individual inspectors, but can be modified by the agency at any time.

Part 3 of the AWA details the Standards of Care for housing, facilities, exercise, cleaning, sanitization, and housekeeping required under USDA/APHIS regulation. Standards will not be revised for home-based retail sellers as APHIS cannot privilege newly licensed breeders over currently licensed breeders. The Final Rule notes: “Several of these commenters suggested that we amend part 3 in the final rule to establish alternate, performance-based standards for dog and cat fanciers and other small-scale residential breeders. We are making no changes in response to these comments. The comments were predicated on an assumption that it will be cost-prohibitive for most residential breeders who are regulated as a result of this rule to meet the standards in part 3; we do not consider that to be the case. (Page 63 of 91)

Below is a short list of noteworthy statements from the Final Rule Discussion of Comments regarding who APHIS intends to license. Access this document at http://www.saova.org/APHIS_rulemaking.html

1. We consider private rescues and shelters that perform any of the activities listed in the definition of dealer, including transporting or offering animals for compensation, to be dealers. We consider acts of compensation to include any remuneration for the animal, regardless of whether it is for profit or not for profit. Remuneration thus includes, but is not limited to, sales, adoption fees, and donations. (Page 13 of 91)

2. If an individual is selling animals at retail for breeding purposes, that individual is not a dealer. We do, however, share the concern that claiming breeding purposes as the purpose for an animal’s retail sale could be subject to abuse. Therefore, if we were to receive word that individuals making such claims are, in fact, marketing their animals as pets, we would consider this to be grounds for initiating an investigation to resolve the matter. (Page 15 of 91)

3. Those who own more than four breeding females and wish to continue selling the offspring as pets, sight unseen, can do so by obtaining a license and allowing APHIS inspectors to inspect their facility. (Page 24 of 91)

4. As is the case with commercial pet retailers, representatives of rescue groups also must be physically present at a place of business so that potential buyers/adoptees can personally observe their animals before purchasing and/or taking custody of them. (Page 35 of 91)

5. In instances where there is some question about the method of sale, APHIS will conduct an investigation and determine whether a sight unseen sale has occurred. (Page 36 of 91)

6. APHIS investigates all credible reports we receive of unlicensed activities involving sales of covered pets. (Page 39 of 91) Note: APHIS stated in a conference call hosted by AKC that complaints of noncompliance will be accepted by email and through their web site and can be anonymous.

7. Farm animals intended for use as food, fiber, or other purposes specified under the definition of farm animal in § 1.1 are exempt from regulation, regardless of whether those animals are sold face-to-face or sight unseen. Farm animals sold specifically as pets in face-to-face transactions are also exempt from licensing. (Page 41 of 91)

8. If sellers of such [working] dogs also sell dogs at retail for pets, any female dogs bred to produce puppies for sale would be counted as breeding females. (Page 57 of 91)

The commentary contains considerable discussion of Breeding Females and Offspring as the final rule exempts anyone who maintains a total of four or fewer breeding female dogs, cats, and/or small exotic or wild mammals, and who sells only the offspring of these dogs, cats, and/or small exotic or wild mammals, which were born and raised on his or her premises. It is important to note that the word “maintains” includes any breeding female even temporarily residing at that premise, and that the exemption refers to the aggregate number of females on premise regardless of species. It is ultimately an APHIS inspector’s responsibility to decide whether an animal is a breeding female and, generally, APHIS assumes that any female capable of breeding may be bred.

When the rule was proposed in 2012 there was uncertainty regarding its effect on sales of farm animals because the definition of retail pet store names domestic farm animals in the list of covered animals. We were told by APHIS personnel this was not an issue as farm animals were excluded from AWA regulation by definition. However, the Final Rule Discussion of Comments raises this concern once again. APHIS acknowledges that farm animals intended for use as food, fiber, or other purposes specified under the definition of farm animal in § 1.1 are exempt from regulation, then adds “Farm animals intended to be used as pets, for biomedical research, or other nonagricultural research are regulated under the AWA. APHIS further stipulates (Page 41) “Farm animals sold specifically as pets in face-to-face transactions are also exempt from licensing.” Does this provision imply that shipping a “farm animal” as a pet requires a license?

APHIS repeatedly states they will determine who requires a license on a case by case basis. We would strongly advise having an attorney assist you in any dealings with APHIS regarding these decisions.

Thanks for reading. Cross posting is encouraged.

Susan Wolf
Sportsmen's & Animal Owners' Voting Alliance
Working to Identify and Elect Supportive Legislators
saova@earthlink.net

UKC COMMENTARY ON NEW USDA RULES
Posted by Sara Chisnell, UKC Legal Counsel under Your Dog, Your Rights

By now, most of you have heard that some changes have been made to the Animal Welfare Act (AWA) that affect dog breeders, but there has been a lot of confusion on exactly how these changes work. I will attempt to clarify and simplify, to the best of my knowledge, but many of the definitions and applications remain unclear.

First of all, what is the AWA? In a nutshell, the AWA was originally created in order to oversee the humane treatment of animals used in research, and was later expanded to include transporting and dealing animals, as well. The law delineates who must be licensed and subsequently adhere to regulations and standards. Dog breeders who sell pets only at retail, and “retail pet stores”, are exempted from the AWA. The changes to the AWA revise and narrow the definition of “retail pet stores”.

The AWA regulates and requires dealers to be licensed and inspected. A “dealer” is defined as “any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, sells, or negotiates the purchase or sale of: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum or other parts) for research, teaching, testing, experimentation, exhibition, or for use as a pet, or any dog at the wholesale level for hunting, security or breeding purposes.” “Retail pet stores” or anyone who sells dogs at retail for “hunting, breeding or security purposes” are exempt from licensing.

Who will be affected by this definition change? It might not be as sweeping and over-inclusive as it first appeared. Basically, the dog breeders it will affect will be those who sell dogs sight unseen, have more than four (4) “breeding females”, and sell dogs as pets. Sounds simple, right? Not so much. Read commentary at link: http://tinyurl.com/mlwqwxj

USDA ORDERS FOSTER FOODS TO CLEAN-UP PLANTS
Foster Farms in California was told to clean-up or shut down after three of their California plants were linked to a salmonella outbreak. This week Foster Farms issued a press release stating plants would stay open. “USDA Food Safety and Inspection Service (FSIS) today reviewed Foster Farms’ safety plan for its three California facilities in Livingston and Fresno. This follows Foster Farms’ implementation of several new food safety controls over the last two months and the company’s commitment to install added processes during an enhanced inspection period over the next 90 days.”

The CDC reported in July of 2013 that testing of samples traced back to two Foster Farms slaughter establishments. The CDC also reported that some of the salmonella strains detected were showing resistance to antibiotics. The L.A. Times reported a statement by John Glisson, director of research for the U.S. Poultry & Egg Assn., defending the use of antibiotics in agriculture. Glisson stressed that salmonella was a formidable challenge to the poultry industry. The bacteria grows in animals' intestinal tracts and is spread through feces. It can contaminate a chicken farm through water, feed, birds and rodents. When infected chicken waste dries, salmonella can spread through dust.

Foster Farms was the first major broiler chicken producer in the nation to carry the American Humane Association seal, ensuring consumers that its farms meet the nonprofit's animal welfare guidelines for raising poultry. Sources: CDC , Foster Farms, LA Times, SF Gate

HSUS SEEKS REGULATION CHANGE IN KANSAS
Proposed changes to the Kansas Pet Animal Act (KPAA) are being considered by a House-Senate committee which will forward its recommendations to the full Legislature when the 2014 session starts in January. HSUS state director, Midge Grinstead, called for more inspections of breeders to make sure that animal housing standards are being met. Advocates claim current regulations are inadequate to ensure animals in crowded conditions have adequate water, are subject to proper temperatures, and given enough room to move around. Several committee members said they did not see the need to regulate "hobby" breeders or animal training businesses. HSUS included 11 Kansas breeders in their Horrible Hundred list — the third highest of the 20 states in the study.

MASSACHUSETTS PAWS ACT
New legislation filed by Minority Leader Bruce Tarr of Gloucester titled An Act Protecting Animal Welfare and Safety (PAWS Act) would raise animal cruelty fines and penalties. Second or subsequent offenses would have increased penalties from 5 to 10 years in state prison and fines up to $20,000. The legislation would create an anonymous animal abuse tip hotline and impose a fine of up to $1,000 on any veterinarian who fails to report a suspected act of cruelty to an animal. A statewide registry of individuals convicted of animal abuse crimes would be established, and all animal shelters, pet stores or animal breeders would be required to check the registry prior to offering, selling, delivering, or giving an animal to any individual.

PENNSYLVANIA SB1126 MOVES DOG LAW TO HEALTH DEPARTMENT
Introduced October 10, 2013 by Senators Dinniman, Alloway, Erickson, Vogel and Greenleaf, SB1126 amends the Dog Law by moving responsibility from the Department of Agriculture to the Department of Health. The Department of Health would carry out all the administrative and oversight tasks currently required by the Dog Law, including the regulation of dog kennels; the collection of complaints and tips alleging violations of the Dog Law; the seizure of dogs from illegal, unlicensed kennels; and the collection of dog-license, kennel and out-of-state-dealers fees. Senators Dinniman (D, Chester) and Alloway (R, Franklin) state with Dog Law enforcement in the Department of Agriculture, dogs are treated as any other agricultural product and moving them under the responsibility of the Department of Health correctly changes the focus to health, welfare and safety. Senators Dinniman and Alloway plan to unveil a package of bills October 22 with a public dog rally at the Capitol.

COBB COUNTY GA ANIMAL ABUSE UNIT
Cobb District Attorney Vic Reynolds names Sherwin Figueroa and Theresa Schiefer, who both joined the District Attorney’s Office earlier this year, as part of a new Animal Abuse Unit. His office prosecuted five felony aggravated cruelty to animal cases in 2011 and 2012 and, so far in 2013, there have been two cases indicted. Misdemeanor animal cases are prosecuted by the Solicitor General’s Office. Figueroa is an advocate of animal protection and serves as the vice president of the State Bar of Georgia’s Animal Law Section. Source: Marietta Daily Journal