[Federal Register Volume 77, Number 95 (Wednesday, May 16, 2012)]
[Proposed Rules]
[Pages 28799-28805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11839]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 77, No. 95 / Wednesday, May 16, 2012 /
Proposed Rules
[[Page 28799]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 1 and 2
[Docket No. APHIS-2011-0003]
RIN 0579-AD57
Animal Welfare; Retail Pet Stores and Licensing Exemptions
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing to revise the definition of retail pet store
and related regulations to bring more pet animals sold at retail under
the protection of the Animal Welfare Act (AWA). Specifically, we would
narrow the definition of retail pet store so that it means a place of
business or residence that each buyer physically enters in order to
personally observe the animals available for sale prior to purchase
and/or to take custody of the animals after purchase, and where only
certain animals are sold or offered for sale, at retail, for use as
pets. Retail pet stores are not required to be licensed and inspected
under the AWA. We are also proposing to increase 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 the licensing and inspection requirements if he or she sells only
the offspring of those animals born and raised on his or her premises,
for pets or exhibition. This exemption would apply regardless of
whether those animals are sold at retail or wholesale. This proposed
rule is necessary to ensure that animals sold at retail are monitored
for their health and humane treatment and to concentrate our regulatory
efforts on those facilities that present the greatest risk of
noncompliance with the regulations.
DATES: We will consider all comments that we receive on or before July
16, 2012.
ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0003-0001.
Postal Mail/Commercial Delivery: Send your comment to
Docket No. APHIS-2011-0003, Regulatory Analysis and Development, PPD,
APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-
1238.
Supporting documents and any comments we receive on this docket may
be viewed at http://www.regulations.gov/#!x0docketDetail;D=APHIS-2011-
0003 or in our reading room, which is located in room 1141 of the USDA
South Building, 14th Street and Independence Avenue SW., Washington,
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through
Friday, except holidays. To be sure someone is there to help you,
please call (202) 799-7039 before coming.
FOR FURTHER INFORMATION CONTACT: Dr. Gerald Rushin, Veterinary Medical
Officer, Animal Care, APHIS, 4700 River Road 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 Health
Inspection Service (APHIS) is taking this action pursuant to its
authority under the Animal Welfare Act (AWA or the Act, 7 U.S.C. 2131
et seq.). The Secretary of Agriculture is authorized to promulgate
standards and other requirements governing the humane handling, care,
treatment, and transportation of certain animals by dealers, research
facilities, exhibitors, operators of auction sales, and carriers and
intermediate handlers. The Secretary has delegated responsibility for
administering the AWA to the Administrator of APHIS. Regulations and
standards established under the AWA are contained in the Code of
Federal Regulations (CFR) in 9 CFR parts 1, 2, and 3. APHIS is
undertaking this action to ensure that animals sold at retail are
monitored for their health and humane treatment.
II. Summary of Major Provisions
``Retail pet stores'' are not required to obtain a license under
the AWA or comply with the AWA regulations and standards. Currently,
anyone selling, at retail, the following animals for use as pets are
considered retail pet stores: Dogs, cats, rabbits, guinea pigs,
hamsters, gerbils, rats, mice, gophers, chinchilla, domestic ferrets,
domestic farm animals, birds, and cold-blooded species.
This proposed rule would rescind the ``retail pet store'' status of
anyone selling, at retail for use as pets, the animals listed above to
buyers who do not physically enter his or her place of business or
residence in order to personally observe the animals available for sale
prior to purchase and/or to take custody of the animals after purchase.
Unless otherwise exempt under the regulations, these entities would be
required to obtain a license from APHIS and would become subject to the
requirements of the AWA, which include identification of animals and
recordkeeping requirements, as well as the following standards:
Facilities and operations (including space, structure and construction,
waste disposal, heating, ventilation, lighting, and interior surface
requirements for indoor and outdoor primary enclosures and housing
facilities); animal health and husbandry (including requirements for
veterinary care, sanitation and feeding, watering, and separation of
animals); and transportation (including specifications for primary
enclosures, primary conveyances, terminal facilities, and feeding,
watering, care, and handling of animals in transit).
In addition to retail pet stores, the proposed rule would exempt
from regulation anyone who sells or negotiates the sale or purchase of
any animal, except wild or exotic animals, dogs, or cats, and who
derives no more than $500 gross income from the sale of such animals.
In addition, the proposed rule would increase 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 if he or she sells only the offspring of
those animals born and raised on his or her premises for use as pets or
exhibition, regardless of whether those animals are sold at retail or
wholesale.
[[Page 28800]]
III. Costs and Benefits
The benefits of the rule, primarily expected improvements in animal
welfare, are expected to justify the costs. These benefits are not
quantified. As detailed in the RIA, total costs are expected to total
from $2.2 million to $5.5 million, while total cost savings could range
from about $45,000 to about $150,000 per year. An estimate of the
primary costs that may be incurred by entities in connection with this
proposed rule is provided below:
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Area of possible Unit cost \1\.................... Number of Total cost range
non-compliance affected ($1,000)
facilities
\2\
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Licensing fees............................ $10 application fee; $30-$750 1,500 $105 $353
licensing fee (assume $70 to
$235) \3\.
Identification............................ $1.12-$2.50 for collars & tags 1,500 413 923
(246 dogs per facility need
identification) \4\.
Recordkeeping............................. 10 hrs annually * $13.07/hour 1,500 196 196
(BLS 43-9061).
Facility Maintenance...................... 8-10 hrs (preliminary) *; $9.38/ 248 19 23
hr (BLS 39-2021).
$50 to $100 (materials).......... ........... 12 25
2-8 hrs per week (ongoing) *; ........... 242 968
$9.38/hr (BLS 39-2021).
Veterinary care........................... $50 to $150 (site visit)......... 237 12 36
$75 to $300 (1 to 3 veterinary ........... 18 213
care issues).
$16 to $35 for puppy vaccinations ........... 531 1,161
Shelter Construction...................... $80-$120 for a commercial igloo 65 5 156
style dog house (1 to 20 new
shelters).
Primary Enclosures........................ $220-$260 for a commercial 3' x 21 5 164
6' kennel (1 to 30 new
enclosures).
Daily Sanitation & Cleaning per Year...... 1-2 hrs daily * $9.38/hr (BLS 39- 194 664 1,328
2021).
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Total................................. ................................. ........... 2,222 5,545
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\1\ These costs may be overestimated. In general, they do not account for volume discounts, do-it-yourself labor
or construction out of inexpensive 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 possible non-compliance is based on 1,500 multiplied by the percentage of
wholesale breeders found to be non-compliant for that category in pre-licensing 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, we assume 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 a year.
Background
Under the Animal Welfare Act (AWA or the Act, 7 U.S.C. 2131 et
seq.), the Secretary of Agriculture is authorized to promulgate
standards and other requirements governing the humane handling, care,
treatment, and transportation of certain animals by dealers, research
facilities, exhibitors, operators of auction sales, and carriers and
intermediate handlers. The Secretary has delegated responsibility for
administering the AWA to the Administrator of U.S. Department of
Agriculture's (USDA) Animal and Plant Health Inspection Service
(APHIS). Within APHIS, the responsibility for administering the AWA has
been delegated to the Deputy Administrator for Animal Care. Regulations
and standards established under the AWA are contained in the Code of
Federal Regulations (CFR) in 9 CFR parts 1, 2, and 3 (referred to below
as the regulations). Part 1 contains definitions for terms used in
parts 2 and 3; part 2 provides administrative requirements and sets
forth institutional responsibilities for regulated parties; and part 3
contains specifications for the humane handling, care, treatment, and
transportation of animals covered by the AWA.
The AWA seeks to ensure the humane handling, care, treatment, and
transportation of certain animals that are sold at wholesale and retail
for use in research facilities, for exhibition purposes, or for use as
pets. Dealers of animals must obtain licenses, they must comply with
the AWA regulations and standards, and their facilities may be
inspected for compliance. The Act defines the term dealer to exclude
``a retail pet store except such store which sells any animals to a
research facility, an exhibitor, or a dealer.'' However, the Act does
not define the term ``retail pet store.''
Pursuant to its rulemaking authority, the USDA amended the AWA
regulations in 1971 by adding a definition of retail pet store. A
retail pet store is defined in Sec. 1.1 of the regulations to mean
``any outlet where only the following animals are sold or offered for
sale, at retail, for use as pets: Dogs, cats, rabbits, guinea pigs,
hamsters, gerbils, rats, mice, gophers, chinchilla, domestic ferrets,
domestic farm animals, birds, and cold-blooded species.'' The
definition of retail pet store goes on to describe certain
establishments that do not qualify as retail pet stores, even if they
sell animals at retail. Those establishments that do not qualify as
retail pet stores are:
Establishments or persons who deal in dogs used for
hunting, security, or breeding purposes;
Establishments or persons exhibiting, selling, or offering
to exhibit or sell any wild or exotic or other nonpet species of
warmblooded animals (except birds), such as skunks, raccoons, nonhuman
primates, squirrels, ocelots, foxes, coyotes, etc.;
Establishments or persons selling warmblooded animals
(except birds, and laboratory rats and mice) for research or exhibition
purposes;
Establishments wholesaling any animals (except birds,
rats, and mice); and
Establishments exhibiting pet animals in a room that is
separate from or adjacent to the retail pet store, or in an outside
area, or anywhere off the retail pet store premises.
In accordance with the AWA, retail pet stores are exempt from the
licensing requirements in Sec. 2.1(a)(3) of the regulations. Other
retail and wholesale dealers must be licensed, unless
[[Page 28801]]
otherwise exempt under the regulations. The exemptions most relevant to
this proposed rule are discussed in greater detail later in this
document.
The current definition of the term retail pet store was established
over 40 years ago to ensure that the appropriate retail facilities were
exempt from the licensing requirements. At that time, such outlets were
primarily hobby breeders, whose small facilities usually pose less risk
to the welfare of animals than do large facilities, and traditional
``brick and mortar'' stores that were subject to a degree of oversight
by persons who physically entered their place of business to personally
observe the animals offered for sale prior to purchase and/or to take
custody of the animals after purchase. In this way, animals sold by
such traditional retail pet stores can be monitored by the public for
their health and humane treatment. However, with the increased use of
the Internet in the 1990s, many retailers began to offer their animals
for sale remotely over the Internet and to sell and transport their
animals nationwide. As a result, today's customers are often unable to
enter the retailer's place of business to observe the animals before
taking them home. Because the current definition of retail pet store
includes all retail outlets, with the limited exceptions discussed
above, retailers selling animals by any means, including remote sales
conducted over the Internet or by mail, telephone, or any other means
where the customers do not physically enter a physical premises,
qualify as retail pet stores and are exempt from the licensing
requirements, even if they lack the public oversight provided by
customers entering their place of business.
Without that public oversight or licensing and inspections by
APHIS, there is no assurance that animals sold at retail for use as
pets are monitored for their health and humane treatment nationwide. In
fact, in recent years, APHIS has noted a number of reports and
complaints concerning the welfare of such animals. During a program
audit that was completed in 2010, the USDA's Office of Inspector
General found that some consumers who purchased dogs over the Internet
had encountered health problems with their dogs.\1\ The report did not
discuss whether animals purchased over the Internet suffer from health
problems at a greater rate than those sold in traditional, brick-and-
mortar retail pet stores. In addition, APHIS has received complaints
directly from members of the public concerning the welfare of dogs and
other pet animals sold at retail. Members of Congress have also
introduced legislation intended to address the issue of dogs raised by
high-volume breeders that sell directly to the public, including sales
over the Internet.\2\
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\1\ USDA, Office of Inspector General, ``Animal and Plant Health
Inspection Service, Animal Care Program, Inspections of Problematic
Dealers'' (Report No: 33002-4-SF, Issued May 2010), p. 37.
\2\ See, for example, H.R. 835/S. 707, the Puppy Uniform
Protection and Safety (PUPS) Act, http://thomas.loc.gov/cgi-bin/bdquery/z?d112:h.r.835.
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To address these issues and ensure that animals sold at retail for
use as pets are monitored for their health and humane treatment, we are
proposing to revise the definition of retail pet store in order to
bring more pet animal retailers under the AWA licensing requirements.
Specifically, we are proposing to amend the definition of retail pet
store to limit the applicability of the term to only those places of
business or residences that each buyer physically enters in order to
personally observe the animals available for sale prior to purchase
and/or to take custody of the animals after purchase. Because animals
sold by such stores can be monitored by the buyers for their health and
humane treatment, we have determined that the risk to the welfare of
animals posed by these stores does not warrant our inspection or
require the issuance of a license.
We are also proposing that the revised definition of retail pet
store include any person who meets the criteria in Sec. 2.1(a)(3)(iii)
of the regulations. That paragraph currently provides an exemption from
licensing requirements for persons who maintain a total of three or
fewer breeding female dogs, cats, and/or small exotic or wild mammals
and who sell only the offspring of these dogs, cats, or small exotic or
wild mammals, which were born and raised on his or her premises, for
pets or exhibition. This licensing exemption does not include: (1) Any
person residing in a household that collectively maintains a total of
more than three breeding female dogs, cats, and/or small exotic or wild
mammals, regardless of ownership, (2) any person maintaining breeding
female dogs, cats, and/or small exotic or wild mammals on premises on
which more than three breeding female dogs, cats, and/or small exotic
or wild mammals are maintained, or (3) any person acting in concert
with others where they collectively maintain a total of more than three
breeding female dogs, cats, and/or small exotic or wild mammals
regardless of ownership.
In addition to adding persons meeting the criteria in Sec.
2.1(a)(3)(iii) to the definition of retail pet store, we are also
proposing to increase the number of breeding females found in that
exemption from three to four. That proposed change is discussed in the
next section.
Licensing Exemptions
The current licensing exemption for retail pet stores is found in
two paragraphs in Sec. 2.1 of the regulations:
Paragraph (a)(3)(i) exempts from licensing ``retail pet
stores which sell nondangerous, pet-type animals, such as dogs, cats,
birds, rabbits, hamsters, guinea pigs, gophers, domestic ferrets,
chinchilla, rats, and mice, for pets, at retail only: Provided, That,
Anyone wholesaling any animals, selling any animals for research or
exhibition, or selling any wild, exotic, or nonpet animals retail, must
have a license;'' and
Paragraph (a)(3)(vii) exempts from licensing ``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.''
We are proposing to simplify the exemption 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 the licensing
requirements. The definition of retail pet store already lists the
types of animals sold at such stores and excludes persons who sell
animals at wholesale, who sell warmblooded animals for research or
exhibition, and who sell wild, exotic, or nonpet animals from the scope
of the definition, so the exemption and exclusions detailed in that
paragraph are unnecessary. This change would also ensure that the
licensing exemption for retail pet stores is consistent with our
proposed definition. Similarly, we are proposing to remove paragraph
(a)(3)(vii) in its entirety. Retaining the exemption for the entities
addressed under that paragraph--essentially all retail breeders--would
be inconsistent with our proposed definition of retail pet store.
In addition to these proposed changes to the licensing exemptions
for retail pet stores, we would also revise the licensing exemption in
Sec. 2.1(a)(3)(ii) of the regulations. Paragraph (a)(3)(ii) exempts
from licensing ``any person who sells or negotiates the sale or
purchase of any animal except wild or exotic animals, dogs, or cats,
and who derives no more than $500 gross income from the sale of such
animals to a research facility, an exhibitor, a dealer, or a pet store
during any calendar year
[[Page 28802]]
and is not otherwise required to obtain a license.'' While this
exemption is based on a similar provision found in the definition of
dealer in the AWA and Sec. 1.1 of the regulations, it differs from
that provision by limiting the source of gross income to sales to
research facilities, exhibitors, dealers, and pet stores only. We
believe that this exemption should apply to all animals. Therefore, we
are proposing to remove the limitation concerning the source of gross
income in Sec. 2.1(a)(3)(ii) of the regulations.
Finally, as noted previously, we are proposing to amend Sec.
2.1(a)(3)(iii) to increase 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. In proposing to increase this number, we are
taking into account the fact that some dealers who currently qualify as
retail pet stores would no longer be exempt from licensing and
inspection requirements as a result of our proposed change to the
definition of retail pet store. By increasing the number of breeding
females, some dealers with small facilities who would not otherwise
qualify as retail pet stores under the revised definition of that term
would continue to be exempt from licensing and inspection requirements
and some pet wholesalers with small facilities who are currently
required to be licensed would no longer have to be licensed. Based on a
recent review of compliance among currently regulated facilities, we
believe that a facility that maintains four breeding females, one more
than the current limit of three, can be considered a low-risk facility,
so this proposed change would allow us to continue to concentrate our
regulatory resources on those facilities that present the greatest risk
of noncompliance and thereby ensure the welfare of animals.
Other Changes
Currently, the definition of dealer in Sec. 1.1 of the regulations
states that this term does not include ``retail pet stores as defined
in this section, unless such store sells any animal to a research
facility, an exhibitor, or a dealer (wholesale)''. The phrase ``unless
such store sells any animal to a research facility, an exhibitor, or a
dealer (wholesale)'' is redundant given the exclusions contained in the
definition of retail pet store. We are proposing to revise the
definition of dealer by removing this phrase in order to eliminate this
redundancy.
Alternatives Considered
APHIS believes that compliance with the requirements of the AWA is
important for these potentially affected entities for the reasons
discussed above, but should not be regarded as unreasonably onerous.
Entities subject to the AWA must purchase a license, which ranges in
cost from $40-$760, depending on the size of the establishment.
Further, breeders who sell animals over the Internet will be subject to
the other provisions of the AWA, including identification of animals,
recordkeeping, facility maintenance, periodic vet care, shelter
construction standards, and sanitation requirements. APHIS believes
that these requirements are not excessively burdensome, but we also
recognize that many of the regulated entities are likely to be small
businesses.
Consistent with Executive Orders 12866 and 13563, which emphasize
determining the least costly regulatory option, and with the
President's January 12, 2011, Memorandum on Small Businesses and Job
Creation, APHIS has considered several alternatives to this proposed
action. For the reasons discussed below, we believe the changes
proposed in this document represented the best alternative option that
would satisfactorily accomplish the stated objectives and minimize
impacts on small entities. However, we welcome comments from the public
on these and other alternative options.
As written, some dealers would no longer qualify as retail pet
stores under our proposed definition if they sold covered animals at
retail to a buyer who did not physically enter the seller's place of
business or residence, unless the dealer is otherwise exempted under
the regulations. This would mean that if a person sold some pets to
walk-in customers from a physical storefront and some pets via remote
sales, including over the Internet or by mail, telephone, or other non-
face-to-face means, then that person would be considered a dealer under
the AWA and subject to regulation under the Act unless otherwise
exempted under the regulations.
We recognize that retailers who sell some animals to walk-in
customers and some animals remotely may be subject to a certain degree
of oversight by the customers who enter their place of business or
residence. As a result, we considered establishing a regulatory
threshold based on the percentage of such a retailer's remote sales.
However, we did not include this alternative in our proposed changes
for two reasons. First, we do not have the authority to require that
retail pet stores make and retain sales records under the AWA, which
are necessary to verify the retailer is operating within the
established threshold, whatever that percentage might be. Second, it
would also be difficult to confirm that all the animals that the entity
sells at retail were available to be observed by its walk-in customers.
If the animals sold to walk-ins were kept in one location or part of a
location where they could be seen by the public and the animals sold
remotely were kept at another location, then those latter animals would
not receive the public oversight that forms the basis for the retail
pet store exemption. For these reasons, we do not believe that it is
possible to craft a threshold based on a percentage of a retailer's
remote sales that, if met, would enable a hybrid operation such as we
have described to continue to be considered a retail pet store and thus
remain exempt from the licensing and requirements under the Act. We
are, however, interested in receiving comments from the public on this
alternative. Are there currently retailers who sell some animals from a
storefront and some animals remotely and, if so, are there specific
ways that they do business that provide assurance that all the covered
animals they sell at retail are subject to public oversight? Are there
alternatives to verifying compliance that we may not have considered?
We welcome comments from the public on these questions.
A second alternative we considered in preparing this proposed rule
was to add an exception from licensing for retailers that are subject
to oversight by State or local agencies or by breed and registry
organizations that enforce standards of welfare comparable to those
standards established under the AWA. To our knowledge, 27 States and
the District of Columbia have enacted laws that establish some form of
humane welfare standards for animals kept at pet stores and sold at
retail. While the State laws concerning the welfare of animals in
retail pet stores vary by State, few States actually address all
categories of welfare required under the AWA, including veterinary
care, food and water, proper sanitation, and housing. Similarly, few
breed and registry organizations have welfare standards that they
require their members to meet that are comparable to those required
under the AWA, and few of those organizations conduct regular,
unannounced inspections or have an adequately sized inspectorate to
evaluate compliance with such welfare standards. However, APHIS is
continuing to look for ways to better
[[Page 28803]]
collaborate with its State counterparts and other organizations. For
example, APHIS works with State or local authorities in jurisdictions
that have laws regarding animal cruelty. We are also working in
collaboration with State regulatory groups to develop better
educational tools and requirements for licensure under the AWA. With
these considerations in mind, APHIS concluded that it would be
premature to consider establishing an exemption from the licensing
requirements for retailers that are subject to oversight by State or
local agencies or breed and registry organizations. We certainly wish
to avoid imposing duplicative regulatory requirements on establishments
where the welfare of the animals is being assured through alternative
means, so we welcome information or comments from the public regarding
the idea of an exemption based on oversight from other agencies or
organizations. We request comment on whether any State or local laws
establish standards that would assure the humane handling, care,
treatment, and transportation of animals sold remotely, such as over
the Internet. We also request comment on whether any private
organizations have certification programs that verify compliance with
animal welfare standards comparable to those promulgated under the AWA.
Finally, we request comment on the appropriateness of APHIS providing
an exemption for entities that are so regulated at the State or local
level, or who are otherwise certified.
A third alternative we considered during the development of this
proposed rule was to amend the definition of retail pet store so that
only high-volume breeders would be subject to the AWA regulations and
standards. While an objective standard for what constitutes a high-
volume breeder has not been established, we note that the PUPS Act
legislation referenced in footnote 2 would amend the AWA to define a
``high volume retail breeder'' as a person who, in commerce, for
compensation or profit: (1) Has an ownership interest in or custody of
one or more breeding female dogs; and (2) sells or offers for sale, via
any means of conveyance (including the Internet, telephone, or
newspaper), more than 50 of the offspring of such dogs for use as pets
in any 1-year period.
To compare our proposed exemption for persons who maintain four or
fewer breeding females to the standard of 50 dogs sold that is provided
in the PUPS Act, we note that the number of puppies that could be
produced by 3 breeding female dogs is going to vary according to the
breed of the dog. For example, as noted in the Fall 2009 edition of the
AKC Breeder,\3\ Labrador retrievers had a typical range of 5 to 10
puppies per litter, with an average of 7.6, while Yorkshire terriers
showed a range of 2 to 5 pups, with an average of 3.3. The number of
litters per year varies as well, but we are aware of estimates of an
average of 1.5 litters per dog per year. With that, 3 Yorkshire
terriers could produce as many as 22 puppies in a year, while 3
Labrador retrievers might produce as many as 45 puppies over the same
period. Adding a fourth breeding female as proposed above would bring
that average to 30 to 60 puppies in a year, which is a figure that
brings our exemption into closer alignment with the standard of 50 dogs
sold per year provided in the PUPS Act. We welcome comments regarding
the variability of litter size by breed and the impact that variability
may have on the setting of size thresholds for the types of entities
discussed in this proposed rule.
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\3\ http://www.akc.org/enewsletter/akc_breeder/2009/fall/handbook.cfm.
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We have elected in this proposed rule to retain an exemption based
on the number of breeding females, and not to propose a different
exemption based on the number of animals sold in a given period,
largely because of enforceability concerns. When an inspector visits a
facility under the current regulations, he or she can quickly
ascertain, through direct observation and discussion with the operator
of that facility, if the number of breeding female animals that are
present falls within the exemption. In contrast, if there were an
exemption based on the number of animals sold in a given period, it
would be necessary for the inspector to review sales records and/or
other documentation, which could create compliance burdens, especially
for smaller facilities. Moreover, though, as noted above, we do not
have the authority to require retail pet stores to make or retain the
records that would be necessary to verify the number of animals sold.
We encourage the submission of comments on this topic, however, and
will consider all suggestions regarding exemptions based on number of
breeding females, number of animals sold, or alternative numerical or
other thresholds that we may not have considered.
Finally, we note that the exemption in Sec. 2.1(a)(3)(iii) applies
to persons who maintain breeding female dogs, cats, and/or small exotic
or wild mammals and who sell only the offspring of these dogs, cats, or
small exotic or wild mammals, which were born and raised on his or her
premises, for pets or exhibition. Given that our proposed change in the
number of breeding females was motivated by primarily dog-specific
considerations, we contemplated a fourth alternative, which was to
propose to increase the number of breeding females for dogs only and to
leave the threshold for cats and small exotic or wild mammals at three
breeding females. We ultimately decided that as a matter of fairness
and consistency, the increase in the number of breeding females should
be applied to all three categories of animals covered by the exemption.
We welcome comment on this alternative.
Executive Orders 12866 and 13563 and Regulatory Flexibility Act
This proposed rule has been determined to be significant for the
purposes of Executive Order 12866 and, therefore, has been reviewed by
the Office of Management and Budget.
We have prepared an economic analysis for this rule. The economic
analysis provides a cost-benefit analysis, as required by Executive
Orders 12866 and 13563, and an initial regulatory flexibility analysis
that examines the potential economic effects of this proposed rule on
small entities, as required by the Regulatory Flexibility Act. The
economic analysis is summarized below. Copies of the full analysis are
available by contacting the person listed under FOR FURTHER INFORMATION
CONTACT or on the Regulations.gov Web site (see ADDRESSES above for
instructions for accessing Regulations.gov).
Should this proposed rule be adopted, persons who sell covered
animals to any buyer who does not enter their facility to observe the
animals prior to purchase and/or to take custody of the animals after
purchase, such as remote sales conducted over the Internet where the
customer does not enter a storefront at any point in time, would need
to obtain a license in accordance with AWA regulations. APHIS expects
that this rule would primarily affect dog breeders that maintain more
than four breeding females at their facilities. While the scope of this
rule applies to certain other animals, as a practical matter, most of
retailers of animals other than dogs would meet the proposed definition
of retail pet store and continue to be exempt from regulation. APHIS
estimates that there may be around 1,500 dog breeders who are not
currently subject to the AWA regulations but would be required to be
licensed as a result of this proposed rule. We base this estimate on
the ratio of the number of wholesale breeders
[[Page 28804]]
regulated by USDA in Iowa, Kansas, and Missouri to the number of retail
breeders currently regulated by these three States and that are likely
to have more than four breeding females. Assuming this ratio between
the numbers of wholesale and retail breeders in the three States is
similar to that for the United States as a whole, we extrapolate that
there are about 1,500 U.S. retail breeders who would be newly subject
to regulation. This figure is likely overly inclusive, as it assumes
that all retail breeders, except for traditional retail pet stores and
hobby breeders, would be regulated. However, those retailers for which
each buyer visits their place of business prior to purchase or taking
custody would continue to be exempt from regulation.
In addition to obtaining a license, regulated entities must comply
with animal identification and recordkeeping requirements. Licensed
entities are also subject to standards that address the following:
Facilities and operations (including space, structure and construction,
waste disposal, heating, ventilation, lighting, and interior surface
requirements for indoor and outdoor primary enclosures and housing
facilities); animal health and husbandry (including requirements for
veterinary care, sanitation and feeding, watering, and separation of
animals); and transportation (including specifications for primary
enclosures, primary conveyances, terminal facilities, and feeding,
watering, care, and handling of animals in transit).
Some affected entities may need to make infrastructural and/or
operational changes in order to comply with the standards. Based on our
experience with regulating wholesale breeders, the most common areas of
regulatory noncompliance at prelicensing inspections are veterinary
care, facility maintenance and construction, shelter construction,
primary enclosure minimum space requirements, and cleaning and
sanitation. Assuming patterns of noncompliance by retail breeders newly
regulated as a result of the proposed changes would be similar to those
observed in prelicensing inspection of wholesale breeders, we estimate
that the total cost attributable to the proposed rule may range from
$2.2 million to $5.5 million. The majority of businesses that would be
affected are likely to be small entities.
Expanding the licensing exemption from three or fewer breeding
females to four or fewer breeding females could substantially reduce
the number of Class A licensees (breeders). APHIS inspection data
suggest that the number of current Class A licensees, 2,064, could be
reduced by about 638 facilities (31 percent) due to this increase in
the exemption threshold. Licensing fees range from $40 to $760
annually, depending on a facility's yearly income from the sale of
regulated animals. In 2010, more than 85 percent of Class A licensees
had gross income associated with license fees of between $70 and $235.
Assuming that the entities no longer required to be licensed fall in
this range, total cost savings by these entities could range from about
$45,000 to about $150,000 per year.
We believe that the benefits of this rule, primarily enhanced
animal welfare, would justify the costs. The rule would help ensure
that animals sold at retail, but lacking public oversight receive
humane handling, care and treatment in keeping with the requirements of
the AWA. It would also address the competitive disadvantage of retail
breeders who adhere to the AWA regulations, when compared to those
retailers who do not operate their facilities according to AWA
standards and may therefore bear lower costs. These benefits are not
quantified.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. It is not intended to have retroactive effect.
The Act does not provide administrative procedures which must be
exhausted prior to a judicial challenge to the provisions of this rule.
Executive Order 13175
This proposed rule has been reviewed in accordance with the
requirements of Executive Order 13175, Consultation and Coordination
with Indian Tribal Governments. The review reveals that this regulation
will not have substantial and direct effects on Tribal governments and
will not have significant Tribal implications.
Paperwork Reduction Act
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection or
recordkeeping requirements included in this proposed rule have been
submitted for approval to the Office of Management and Budget (OMB).
Please send written comments to the Office of Information and
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington,
DC 20503. Please state that your comments refer to Docket No. APHIS-
2011-0003. Please send a copy of your comments to: (1) APHIS, using one
of the methods described under ADDRESSES at the beginning of this
document, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th
Street and Independence Avenue SW., Washington, DC 20250. A comment to
OMB is best assured of having its full effect if OMB receives it within
30 days of publication of this proposed rule.
This proposed rule would revise the definition of retail pet store
and related regulations to bring more pet animals sold at retail under
the protection of the AWA. Specifically, we would narrow the definition
of retail pet store so that it means a place of business or residence
that each buyer physically enters in order to personally observe the
animals available for sale prior to purchase and/or to take custody of
the animals after purchase, and where only certain animals are sold or
offered for sale, at retail, for use as pets. We are also proposing to
increase 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, regardless if those animals are sold at retail or
wholesale. This proposed rule is necessary to ensure that animals sold
at retail are monitored for their health and humane treatment and to
concentrate our regulatory efforts on those facilities that present the
greatest risk of noncompliance with the regulations.
We are soliciting comments from the public (as well as affected
agencies) concerning our proposed information collection and
recordkeeping requirements. These comments will help us:
(1) Evaluate whether the proposed information collection is
necessary for the proper performance of our agency's functions,
including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
proposed information collection, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological
[[Page 28805]]
collection techniques or other forms of information technology; e.g.,
permitting electronic submission of responses).
Estimate of burden: Public reporting burden for this collection of
information is estimated to average 0.355921499 hours per response.
Respondents: Retailers and wholesalers of pet animals.
Estimated annual number of respondents: 1,500.
Estimated annual number of responses per respondent: 28.50066667.
Estimated annual number of responses: 42,751.
Estimated total annual burden on respondents: 15,216 hours. (Due to
averaging, the total annual burden hours may not equal the product of
the annual number of responses multiplied by the reporting burden per
response.)
Copies of this information collection can be obtained from Mrs.
Celeste Sickles, APHIS' Information Collection Coordinator, at (301)
851-2908.
List of Subjects in 9 CFR Parts 1 and 2
Animal welfare, Pets, Reporting and recordkeeping requirements,
Research.
Accordingly, we propose to amend 9 CFR parts 1 and 2 as follows:
PART 1--DEFINITION OF TERMS
1. The authority citation for part 1 continues to read as follows:
Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.
2. In Sec. 1.1, the definition of dealer and the introductory text
of the definition of retail pet store are revised to read as follows:
Sec. 1.1 Definitions.
* * * * *
Dealer means any person who, in commerce, for compensation or
profit, delivers for transportation, or transports, except as a
carrier, buys, or 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.
This term does not include: A retail pet store, as defined in this
section; any retail outlet where dogs are sold for hunting, breeding,
or security purposes; or 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.
* * * * *
Retail pet store means a place of business or residence that each
buyer physically enters in order to personally observe the animals
available for sale prior to purchase and/or to take custody of the
animals after purchase, and where only the following animals are sold
or offered for sale, at retail, for use as pets: Dogs, cats, rabbits,
guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchilla,
domestic ferrets, domestic farm animals, birds, and coldblooded
species. A retail pet store also includes any person who meets the
criteria in Sec. 2.1(a)(3)(iii) of this subchapter. Such definition
excludes--
* * * * *
PART 2--REGULATIONS
3. The authority citation for part 2 continues to read as follows:
Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.
4. Section 2.1 is amended as follows:
a. By revising paragraph (a)(3)(i) to read as set forth below.
b. In paragraph (a)(3)(ii), by removing the words ``to a research
facility, an exhibitor, a dealer, or a pet store''.
c. In paragraph (a)(3)(iii), in the first sentence, by removing the
words ``three (3)'' and adding the word ``four'' in their place, and in
the second sentence, by removing the word ``three'' each of the three
times it appears and adding the word ``four'' in its place.
d. By removing paragraph (a)(3)(vii) and redesignating paragraph
(a)(3)(viii) as paragraph (a)(3)(vii).
Sec. 2.1 Requirements and application.
* * * * *
(a) * * *
(3) * * *
(i) Retail pet stores as defined in part 1 of this subchapter;
* * * * *
Done in Washington, DC, this 10th day of May 2012.
Edward Avalos,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2012-11839 Filed 5-15-12; 8:45 am]
BILLING CODE 3410-34-P