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Animal Welfare; Retail Pet Stores and Licensing Exemptions

Animal Welfare; Retail Pet Stores and Licensing Exemptions

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Published by ALDF
Document ID: APHIS-2011-0003-0001
Document Type: Proposed Rule
Docket ID: APHIS-2011-0003
RIN: 0579-AD57
Document ID: APHIS-2011-0003-0001
Document Type: Proposed Rule
Docket ID: APHIS-2011-0003
RIN: 0579-AD57

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Published by: ALDF on Jul 31, 2012
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This section of the FEDERAL REGISTERcontains notices to the public of the proposedissuance of rules and regulations. Thepurpose of these notices is to give interestedpersons an opportunity to participate in therule making prior to the adoption of the finalrules.
Proposed Rules
Federal Register
28799
Vol. 77, No. 95Wednesday, May 16, 2012
DEPARTMENT OF AGRICULTUREAnimal and Plant Health InspectionService9 CFR Parts 1 and 2
[Docket No. APHIS–2011–0003]RIN 0579–AD57
Animal Welfare; Retail Pet Stores andLicensing Exemptions
AGENCY
:
Animal and Plant HealthInspection Service, USDA.
ACTION
:
Proposed rule.
SUMMARY
:
We are proposing to revise thedefinition of 
retail pet store
and relatedregulations to bring more pet animalssold at retail under the protection of theAnimal Welfare Act (AWA).Specifically, we would narrow thedefinition of 
retail pet store
so that itmeans a place of business or residencethat each buyer physically enters inorder to personally observe the animalsavailable for sale prior to purchase and/or to take custody of the animals afterpurchase, and where only certainanimals are sold or offered for sale, atretail, for use as pets. Retail pet storesare not required to be licensed andinspected under the AWA. We are alsoproposing to increase from three to fourthe number of breeding female dogs,cats, and/or small exotic or wildmammals that a person may maintainon his or her premises and be exemptfrom the licensing and inspectionrequirements if he or she sells only theoffspring of those animals born andraised on his or her premises, for petsor exhibition. This exemption wouldapply regardless of whether thoseanimals are sold at retail or wholesale.This proposed rule is necessary toensure that animals sold at retail aremonitored for their health and humanetreatment and to concentrate ourregulatory efforts on those facilities thatpresent the greatest risk of noncompliance with the regulations.
DATES
:
We will consider all commentsthat we receive on or before July 16,2012.
ADDRESSES
:
You may submit comments by either of the following methods:
Federal eRulemaking Portal: 
Go to
Postal Mail/Commercial Delivery: 
Send your comment to Docket No.APHIS–2011–0003, Regulatory Analysisand Development, PPD, APHIS, Station3A–03.8, 4700 River Road Unit 118,Riverdale, MD 20737–1238.Supporting documents and anycomments we receive on this docketmay be viewed at
or in our readingroom, which is located in room 1141 of the USDA South Building, 14th Streetand Independence Avenue SW.,Washington, DC. Normal reading roomhours are 8 a.m. to 4:30 p.m., Mondaythrough Friday, except holidays. To besure someone is there to help you,please call (202) 799–7039 beforecoming.
FOR FURTHER INFORMATION CONTACT
:
Dr.Gerald Rushin, Veterinary MedicalOfficer, Animal Care, APHIS, 4700 RiverRoad Unit 84, Riverdale, MD 20737–1231; (301) 851–3740.
SUPPLEMENTARY INFORMATION
:
Executive Summary
I. Purpose of Regulatory Action
The U.S. Department of Agriculture’s(USDA) Animal and Plant HealthInspection Service (APHIS) is takingthis action pursuant to its authorityunder the Animal Welfare Act (AWA orthe Act, 7 U.S.C. 2131
et seq.
). TheSecretary of Agriculture is authorized topromulgate standards and otherrequirements governing the humanehandling, care, treatment, andtransportation of certain animals bydealers, research facilities, exhibitors,operators of auction sales, and carriersand intermediate handlers. TheSecretary has delegated responsibilityfor administering the AWA to theAdministrator of APHIS. Regulationsand standards established under theAWA are contained in the Code of Federal Regulations (CFR) in 9 CFRparts 1, 2, and 3. APHIS is undertakingthis action to ensure that animals soldat retail are monitored for their healthand humane treatment.
II. Summary of Major Provisions
‘‘Retail pet stores’’ are not required toobtain a license under the AWA orcomply with the AWA regulations andstandards. Currently, anyone selling, atretail, the following animals for use aspets are considered retail pet stores:Dogs, cats, rabbits, guinea pigs,hamsters, gerbils, rats, mice, gophers,chinchilla, domestic ferrets, domesticfarm animals, birds, and cold-bloodedspecies.This proposed rule would rescind the‘‘retail pet store’’ status of anyoneselling, at retail for use as pets, theanimals listed above to buyers who donot physically enter his or her place of  business or residence in order topersonally observe the animals availablefor sale prior to purchase and/or to takecustody of the animals after purchase.Unless otherwise exempt under theregulations, these entities would berequired to obtain a license from APHISand would become subject to therequirements of the AWA, whichinclude identification of animals andrecordkeeping requirements, as well asthe following standards: Facilities andoperations (including space, structureand construction, waste disposal,heating, ventilation, lighting, andinterior surface requirements for indoorand outdoor primary enclosures andhousing facilities); animal health andhusbandry (including requirements forveterinary care, sanitation and feeding,watering, and separation of animals);and transportation (includingspecifications for primary enclosures,primary conveyances, terminalfacilities, and feeding, watering, care,and handling of animals in transit).In addition to retail pet stores, theproposed rule would exempt fromregulation anyone who sells ornegotiates the sale or purchase of anyanimal, except wild or exotic animals,dogs, or cats, and who derives no morethan $500 gross income from the sale of such animals. In addition, the proposedrule would increase from three to fourthe number of breeding female dogs,cats, and/or small exotic or wildmammals that a person may maintainon his or her premises and be exemptfrom licensing and inspection if he orshe sells only the offspring of thoseanimals born and raised on his or herpremises for use as pets or exhibition,regardless of whether those animals aresold at retail or wholesale.
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/Vol. 77, No. 95/Wednesday, May 16, 2012/Proposed Rules
III. Costs and Benefits
The benefits of the rule, primarilyexpected improvements in animalwelfare, are expected to justify the costs.These benefits are not quantified. Asdetailed in the RIA, total costs areexpected to total from $2.2 million to$5.5 million, while total cost savingscould range from about $45,000 to about$150,000 per year. An estimate of theprimary costs that may be incurred byentities in connection with thisproposed rule is provided below:
Area of possiblenon-complianceUnit cost
1
Number ofaffected fa-cilities
2
 Total cost range($1,000)Licensing fees.............................................$10 application fee; $30–$750 licensing fee (assume $70 to$235)
3
.1,500 $105 $353Identification................................................$1.12–$2.50 for collars & tags (246 dogs per facility needidentification)
4
.1,500 413 923Recordkeeping............................................10 hrs annually* $13.07/hour (BLS 43–9061).......................1,500 196 196Facility Maintenance...................................8–10 hrs (preliminary)*; $9.38/hr (BLS 39–2021).................248 19 23$50 to $100 (materials)..............................................................................12 252–8 hrs per week (ongoing)*; $9.38/hr (BLS 39–2021)............................242 968Veterinary care...........................................$50 to $150 (site visit)............................................................237 12 36$75 to $300 (1 to 3 veterinary care issues)...............................................18 213$16 to $35 for puppy vaccinations.............................................................531 1,161Shelter Construction...................................$80–$120 for a commercial igloo style dog house (1 to 20new shelters).65 5 156Primary Enclosures.....................................$220–$260 for a commercial 3
x 6
kennel (1 to 30 new en-closures).21 5 164Daily Sanitation & Cleaning per Year.........1–2 hrs daily* $9.38/hr (BLS 39–2021).................................194 664 1,328Total..........................................................................................................................................................................2,222 5,545
1
These costs may be overestimated. In general, they do not account for volume discounts, do-it-yourself labor or construction out of inexpen-sive materials that may be more likely in some cases.
2
We estimate that there may be about 1,500 dog breeders that could be affected by this rule. The number of facilities for each area of pos-sible non-compliance is based on 1,500 multiplied by the percentage of wholesale breeders found to be non-compliant for that category in pre-li-censing inspections in 2010.
3
In 2010, more than 85 percent of Class A licensees had gross income associated with license fees of between $70 and $235. Therefore, weassume that newly regulated entities would fall in this range.
4
In 2010, there were an average of 106 adults and 93 puppies at licensed wholesale breeders at one time. We assume, based on litter sizes,frequency of litters, and puppy sales, that there would be about 1.5 times this number of puppies at the average facility over the course of ayear.
Background
Under the Animal Welfare Act (AWAor the Act, 7 U.S.C. 2131
et seq.
), theSecretary of Agriculture is authorized topromulgate standards and otherrequirements governing the humanehandling, care, treatment, andtransportation of certain animals bydealers, research facilities, exhibitors,operators of auction sales, and carriersand intermediate handlers. TheSecretary has delegated responsibilityfor administering the AWA to theAdministrator of U.S. Department of Agriculture’s (USDA) Animal and PlantHealth Inspection Service (APHIS).Within APHIS, the responsibility foradministering the AWA has beendelegated to the Deputy Administratorfor Animal Care. Regulations andstandards established under the AWAare contained in the Code of FederalRegulations (CFR) in 9 CFR parts 1, 2,and 3 (referred to below as theregulations). Part 1 contains definitionsfor terms used in parts 2 and 3; part 2provides administrative requirementsand sets forth institutionalresponsibilities for regulated parties;and part 3 contains specifications forthe humane handling, care, treatment,and transportation of animals covered by the AWA.The AWA seeks to ensure the humanehandling, care, treatment, andtransportation of certain animals thatare sold at wholesale and retail for usein research facilities, for exhibitionpurposes, or for use as pets. Dealers of animals must obtain licenses, they mustcomply with the AWA regulations andstandards, and their facilities may beinspected for compliance. The Actdefines the term
dealer 
to exclude ‘‘aretail pet store except such store whichsells any animals to a research facility,an exhibitor, or a dealer.’’ However, theAct does not define the term ‘‘retail petstore.’’Pursuant to its rulemaking authority,the USDA amended the AWAregulations in 1971 by adding adefinition of 
retail pet store.
A
retail pet store
is defined in §1.1 of theregulations to mean ‘‘any outlet whereonly the following animals are sold oroffered for sale, at retail, for use as pets:Dogs, cats, rabbits, guinea pigs,hamsters, gerbils, rats, mice, gophers,chinchilla, domestic ferrets, domesticfarm animals, birds, and cold-bloodedspecies.’’ The definition of 
retail pet store
goes on to describe certainestablishments that do not qualify asretail pet stores, even if they sellanimals at retail. Those establishmentsthat do not qualify as retail pet storesare:
Establishments or persons who dealin dogs used for hunting, security, or breeding purposes;
Establishments or personsexhibiting, selling, or offering to exhibitor sell any wild or exotic or othernonpet species of warmblooded animals(except birds), such as skunks, raccoons,nonhuman primates, squirrels, ocelots,foxes, coyotes, etc.;
Establishments or persons sellingwarmblooded animals (except birds,and laboratory rats and mice) forresearch or exhibition purposes;
Establishments wholesaling anyanimals (except birds, rats, and mice);and
Establishments exhibiting petanimals in a room that is separate fromor adjacent to the retail pet store, or inan outside area, or anywhere off theretail pet store premises.In accordance with the AWA, retailpet stores are exempt from the licensingrequirements in §2.1(a)(3) of theregulations. Other retail and wholesaledealers must be licensed, unless
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1
USDA, Office of Inspector General, ‘‘Animal andPlant Health Inspection Service, Animal CareProgram, Inspections of Problematic Dealers’’(Report No: 33002–4–SF, Issued May 2010), p. 37.
2
See, for example, H.R. 835/S. 707, the PuppyUniform Protection and Safety (PUPS) Act,
otherwise exempt under the regulations.The exemptions most relevant to thisproposed rule are discussed in greaterdetail later in this document.The current definition of the term
retail pet store
was established over 40years ago to ensure that the appropriateretail facilities were exempt from thelicensing requirements. At that time,such outlets were primarily hobby breeders, whose small facilities usuallypose less risk to the welfare of animalsthan do large facilities, and traditional‘‘brick and mortar’’ stores that weresubject to a degree of oversight bypersons who physically entered theirplace of business to personally observethe animals offered for sale prior topurchase and/or to take custody of theanimals after purchase. In this way,animals sold by such traditional retailpet stores can be monitored by thepublic for their health and humanetreatment. However, with the increaseduse of the Internet in the 1990s, manyretailers began to offer their animals forsale remotely over the Internet and tosell and transport their animalsnationwide. As a result, today’scustomers are often unable to enter theretailer’s place of business to observethe animals before taking them home.Because the current definition of 
retail  pet store
includes all retail outlets, withthe limited exceptions discussed above,retailers selling animals by any means,including remote sales conducted overthe Internet or by mail, telephone, orany other means where the customersdo not physically enter a physicalpremises, qualify as retail pet stores andare exempt from the licensingrequirements, even if they lack thepublic oversight provided by customersentering their place of business.Without that public oversight orlicensing and inspections by APHIS,there is no assurance that animals soldat retail for use as pets are monitored fortheir health and humane treatmentnationwide. In fact, in recent years,APHIS has noted a number of reportsand complaints concerning the welfareof such animals. During a program auditthat was completed in 2010, the USDA’sOffice of Inspector General found thatsome consumers who purchased dogsover the Internet had encounteredhealth problems with their dogs.
1
Thereport did not discuss whether animalspurchased over the Internet suffer fromhealth problems at a greater rate thanthose sold in traditional, brick-and-mortar retail pet stores. In addition,APHIS has received complaints directlyfrom members of the public concerningthe welfare of dogs and other petanimals sold at retail. Members of Congress have also introducedlegislation intended to address the issueof dogs raised by high-volume breedersthat sell directly to the public, includingsales over the Internet.
2
 To address these issues and ensurethat animals sold at retail for use as petsare monitored for their health andhumane treatment, we are proposing torevise the definition of 
retail pet store
inorder to bring more pet animal retailersunder the AWA licensing requirements.Specifically, we are proposing to amendthe definition of 
retail pet store
to limitthe applicability of the term to onlythose places of business or residencesthat each buyer physically enters inorder to personally observe the animalsavailable for sale prior to purchase and/or to take custody of the animals afterpurchase. Because animals sold by suchstores can be monitored by the buyersfor their health and humane treatment,we have determined that the risk to thewelfare of animals posed by these storesdoes not warrant our inspection orrequire the issuance of a license.We are also proposing that the reviseddefinition of 
retail pet store
include anyperson who meets the criteria in§2.1(a)(3)(iii) of the regulations. Thatparagraph currently provides anexemption from licensing requirementsfor persons who maintain a total of threeor fewer breeding female dogs, cats,and/or small exotic or wild mammalsand who sell only the offspring of thesedogs, cats, or small exotic or wildmammals, which were born and raisedon his or her premises, for pets orexhibition. This licensing exemptiondoes not include: (1) Any personresiding in a household that collectivelymaintains a total of more than three breeding female dogs, cats, and/or smallexotic or wild mammals, regardless of ownership, (2) any person maintaining breeding female dogs, cats, and/or smallexotic or wild mammals on premises onwhich more than three breeding femaledogs, cats, and/or small exotic or wildmammals are maintained, or (3) anyperson acting in concert with otherswhere they collectively maintain a totalof more than three breeding femaledogs, cats, and/or small exotic or wildmammals regardless of ownership.In addition to adding persons meetingthe criteria in §2.1(a)(3)(iii) to thedefinition of 
retail pet store,
we are alsoproposing to increase the number of  breeding females found in thatexemption from three to four. Thatproposed change is discussed in thenext section.
Licensing Exemptions
The current licensing exemption forretail pet stores is found in twoparagraphs in §2.1 of the regulations:
Paragraph (a)(3)(i) exempts fromlicensing ‘‘retail pet stores which sellnondangerous, pet-type animals, such asdogs, cats, birds, rabbits, hamsters,guinea pigs, gophers, domestic ferrets,chinchilla, rats, and mice, for pets, atretail only: Provided, That, Anyonewholesaling any animals, selling anyanimals for research or exhibition, orselling any wild, exotic, or nonpetanimals retail, must have a license;’’ and
Paragraph (a)(3)(vii) exempts fromlicensing ‘‘any person who breeds andraises domestic pet animals for directretail sales to another person for the buyer’s own use and who buys noanimals for resale and who sells noanimals to a research facility, anexhibitor, a dealer, or a pet store (e.g.,a purebred dog or cat fancier) and is nototherwise required to obtain a license.’’We are proposing to simplify theexemption presented in paragraph(a)(3)(i) so that it states simply that‘‘retail pet stores as defined in part 1 of this subchapter’’ are exempt from thelicensing requirements. The definitionof 
retail pet store
already lists the typesof animals sold at such stores andexcludes persons who sell animals atwholesale, who sell warmbloodedanimals for research or exhibition, andwho sell wild, exotic, or nonpet animalsfrom the scope of the definition, so theexemption and exclusions detailed inthat paragraph are unnecessary. Thischange would also ensure that thelicensing exemption for retail pet storesis consistent with our proposeddefinition. Similarly, we are proposingto remove paragraph (a)(3)(vii) in itsentirety. Retaining the exemption for theentities addressed under thatparagraph—essentially all retail breeders—would be inconsistent withour proposed definition of 
retail pet store.
In addition to these proposed changesto the licensing exemptions for retail petstores, we would also revise thelicensing exemption in §2.1(a)(3)(ii) of the regulations. Paragraph (a)(3)(ii)exempts from licensing ‘‘any personwho sells or negotiates the sale orpurchase of any animal except wild orexotic animals, dogs, or cats, and whoderives no more than $500 gross incomefrom the sale of such animals to aresearch facility, an exhibitor, a dealer,or a pet store during any calendar year
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