Thursday, October 31, 2013

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.” 

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. 

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.”$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.

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