The Cavalry Group's Comments for Docket No. APHIS-2011-0003

VIA FEDERAL eRULEMAKING PORTAL 

August 14, 2012

Docket No. APHIS-2011-0003

Regulatory Analysis and Development

PPD

Animal and Plant Health Inspection Service

Station 3A-03.8

4700 River Road

United 118

Riverdale, MD  20737-1238

Re: Docket No. APHIS-2011-000, Animal Welfare; Retail Pet Stores and Licensing 
      Exemptions, Proposed Rule, 77 Fed. Reg. 28,799 (May 16, 2012)

Dear Sir or Madam:

      These comments are submitted on behalf of The Cavalry Group, a private member-based company dedicated to advancing the constitutional rights of law-abiding animal owners, animal-related businesses, and agricultural concerns, with regard to the proposed rule referenced above.

The Cavalry Group has grave concerns that the proposed rule is arbitrary, capricious, and in excess of statutory authority.  Moreover, the Regulatory Impact Analysis & Initial Regulatory Flexibility Analysis grossly underestimates the number of dog and other breeders who are potentially affected small entities and will become subject to the jurisdiction of the Animal and Plant Health Inspection Service (APHIS) under the Animal Welfare Act (AWA). The proposal should be withdrawn.

         I. The Removal of the Section 2.1(a)(3)(vii) Creates Uncertainty

Despite the agency’s assertion that this proposal concerns a redefinition of “retail pet stores,” it is, in fact, the unwarranted removal of another exemption from the licensure and other substantive AWA requirements that is the heart of this proposal.  The proposed rule removes the AWA license exemption that numerous breeders of animals have relied upon for more than two decades.  That exemption was for 

       Any person who breeds and raises domestic pet animals for direct retail sales to another person for the        buyer's own use and who buys no animals for resale and who sells no animals to a research facility, an exhibitor, a dealer, or a pet store (e.g., a purebred dog or cat fancier) and is not otherwise required to obtain a license . . . .

II.  9 C.F.R. § 2.1(a)(3)(vii) (subsection to be deleted under the proposed rule).  Without this exemption, any breeder of AWA-covered animals who engages in direct sales (regardless of the form of advertising such direct sales) would now be considered “dealers” under the Act unless they qualify for another exemption, such as the redefined “retail pet store” of section 2.1(a)(3)(i) and the “breeders” exemption of section 2.1(a)(3)(iii).   

One potential problem with the removal of the direct sales exemption of section 2.1(a)(3)(vii) is the lack of clarity of the remaining exemptions.  Under the “breeders” exemption, the total number of breeding females that would be allowed for an exempt entity is unclear. The proposed rule and preamble does not discuss whether any of the recited animals, dogs, cats and/or small exotic or wild mammals, such as hedgehogs, degus, spiny mice, prairie dogs, flying squirrels, and jerboas, are to be counted by species or collectively.  In other words, would two breeding age female dogs, two breeding age female cats, and one hedgehog transform an otherwise exempt breeder into a retail pet store?  If the proposal is not withdrawn, APHIS should clarify that species should be counted separately for purposes of determining exemption under section 2.1(a)(3)(iii).

       III.  The “Retail Pet Store” and “Breeders’” Exemptions Should Be Read Separately

     It is not clear on the face of the proposed rule, nor in any discussion in the preamble to the proposed rule, whether breeders that have four or fewer breeding females but that also engage in animal sales where the purchaser does not physically enter to personally observe the animal would or would not be exempt from AWA licensure, inspection, and recordkeeping.  In other words, the question is whether the “retail pet store” and the “breeders’” exemptions are separate types of exemption, of whether they must be read together.  Does an entity operating under the “breeders’” exemption also have to comply with the “retail pet store” exemption requirement for physical presence of the buyer?  Some interested organizations have already distributed materials indicating that the “retail pet store” exemption and the “breeders’” exemption should be separately read but this is not evident on the face of the proposed regulation.  If the proposal is not withdrawn, APHIS should clarify that the “retail pet store” exemption of section 2.1(a)(3)(i) and the “breeders” exemption of section 2.1(a)(3)(iii), as redefined, constitute separate exemptions and that compliance with both simultaneously is not required to be exempt from AWA licensure, inspection, and recordkeeping.

        IV.  The Removal of the “Small Sales” Restriction to Research Facilities, Exhibitors, Dealers, or 
               Pet Stores Should Be Retained or Clarified

Finally, the proposed rule slightly revises the regulatory definition of “dealer” to remove language that limits section 2.1(a)(3)(ii) exemption to those persons that engage in certain small sales to research facilities, exhibitors, dealers, or pet stores.  Under the revised definition, any entity that sold or negotiated the sale or purchase of any animal except a dog, cat, or wild or exotic animal would be considered exempt from the definition of “dealer” unless they derived $500 or more in gross income annually from such sales.  Under the proposed rule, then, if a seller had $500 or more gross income from sales to any person in any year, then they would have to be licensed, inspected, and retain records as a dealer.  The $500 figure is derived from the original 1966 text of the AWA, despite the fact that $500 in 1966 would be equivalent to more than $3,500 today.

As with the interplay between the “retail pet store” exemption of section 2.1(a)(3)(i) and the “breeders” exemption of section 2.1(a)(3)(iii), neither the proposed rule nor the preamble discusses whether the exemptions can be read separately or must be read together.  If the proposal is not withdrawn, APHIS should clarify that the “retail pet store” exemption of section 2.1(a)(3)(i) and the “small sales” exemption of section 2.1(a)(3)(ii), as redefined, constitute separate exemptions and that compliance with both simultaneously is not required to be exempt from AWA licensure, inspection, and recordkeeping.  APHIS should also seek statutory authorization to adjust the “small sales” exemption.

The public is generally aware that APHIS is working on a regulatory expansion of animals covered under the AWA to include birds.  The combination of the present proposed expansion of persons who fail to become exempt pursuant to section 2.1(a)(3)(ii) with the addition of birds will exponentially increase the number of persons who will be subject to AWA licensure, inspection, and recordkeeping. 

       V. The Regulatory Impact Analysis & Initial Regulatory Flexibility Analysis Are Flawed 
            in Underestimating the Number of Potentially Affected Persons

The Regulatory Impact Analysis & Initial Regulatory Flexibility Analysis (RIA) are flawed insofar as they fail to provide a well-founded basis for estimates of how many “retail breeders” will be subject to AWA license, inspection, and recordkeeping requirements.  Despite the RIA’s assertion that hobby breeders would be exempt from AWA requirements, the structure of the proposed rule is such that maintaining a sufficient number of breeding age animals, regardless of whether the offspring of one or all such animals are bred for sale, plus a direct sale of a single animal, would deprive the hobby breeder of exemption.  The RIA does not examine how many such persons would be affected.

Taken together, the removal of section 2.1(a)(3)(vii), the expansion of section 2.1(a)(3)(ii), and the requirement that purchaser physical presence is necessary to consummate an exempt retail sale render the proposal arbitrary, capricious, and in excess of statutory authority.   If the Department wishes to re-propose the regulation, the interaction of the various exemptions from AWA licensure, inspection, and recordkeeping should be clarified to ensure that those exemptions are read separately.

VI. Conclusion

The Calvary Group appreciates the opportunity to comment on the proposed rule.  It should, however, be withdrawn in its entirety.  This proposed rule is bad policy and unnecessary as there has been no public outcry from the American people demanding these changes, much less any empirical evidence of an actual problem requiring said proposed rule. We also challenge the Department's authority to propose a rule that affects commerce in this manner.   The only evidential reason that this proposed rule exists is that there has been significant pressure applied to APHIS/USDA from special interest groups, specifically by The Humane Society of the United States (HSUS).  

What we find especially troubling is that APHIS/USDA senior staff have been unable to actually describe what the rules are, much less the basis for them when challenged in person or on the stakeholders conference calls, drawing into question whether USDA staff actually generated the rules or whether they were submitted by HSUS, et al.  Perhaps USDA’s Secretary Tom Vilsack feels we need to pass the proposed rule to find out what’s in it.

Again, we respectfully encourage the Department to withdraw the proposed rule in its entirety.  It has become very clear that USDA and APHIS need to remind themselves that they serve at the pleasure of the American People and that they represent the interests of all Americans not just special interest groups such as HSUS.

Respectfully submitted,

Mark Patterson Mindy Patterson

CEO President

The Cavalry Group The Cavalry Group