Investigate USDA/APHIS and Stop Proposed Rule to Regulate Pet Sellers

Retail sellers including small home/hobby breeders who sell directly to consumers have long been provided an exemption from federal licensing through the broad definition of “retail pet store”.

Animal and Plant Health Inspection Service (APHIS) has proposed to limit this definition 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. APHIS erroneously claims this change restores the intent of Congress; however the intent of Congress to differentiate between wholesale and retail transactions for pets has always been understood and has been upheld in a court of law.

The Proposed Rule changes the Animal Welfare Act (AWA) and USDA responsibility forever by granting authority for federal regulation to extend beyond commercial dog businesses, invading the privacy of American homes in order to establish standards for pet care.

When draft rules are “significant” due to economic effects or because they raise important policy issues, the Regulatory Flexibility Act requires agencies to evaluate the potential effects on small businesses, small organizations, and small governmental jurisdictions. An agency may also be required to analyze issues of unfunded mandates, families, and federalism. The agency must publish the regulatory text of the proposal, setting out amendments to the standing body of law in the Code of Federal Regulations.

APHIS did not fulfill a statutory duty to ensure full compliance with the Small Business Act including determination of impact under zoning laws presented by federalizing a hobby and converting small hobby breeders to home-based businesses, and submitting certification to the Small Business Administration with a detailed statement on the impact of the Proposed Rule on the affected "Small Businesses".

APHIS prepared an inadequate and incomplete economic analysis which drastically underestimated the number of affected dog breeders nationwide and did not include breeder/sellers of cats and other species, or rescue organizations that may no longer be exempt from regulation under the narrowed definition of retail pet store.

APHIS released a Revised FAQ in July 2012 that implied use of a double standard between existing commercial license holders and potential retail license holders. APHIS stated that pet retailers and rescue groups selling to buyers face-to-face at locations other than their own premises were "not the focus" of the Proposed Rule and would not need to obtain a license. The FAQ further stated in the case of dog breeders who allow their dogs to have free run of the entire house, APHIS inspectors will assess the homes individually for compliance with the federal standards. This implies that federal standards are interpretive and that APHIS will selectively enforce portions of the AWA and the Proposed Rule. Without accompanying written changes to the AWA all such statements in this FAQ are invalid.

We find publication of the flawed FAQ to be an inexcusable action by a federal agency. It appears to have been written to quell opposition to the Proposed Rule rather than to explain the effect of the rule if objectively implemented.