By demanding that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining “retail pet store” to prohibit sales of companion animals (Part II)
As we said at the end of Part I, the new Rule’s core rationale “can be summarized by two words: ‘public oversight’ — the foundational premise upon which the new Rule rests.”
That being the premise, traditional “brick and mortar” pet stores will not be reached by the new Rule; they will continue to be exempt from the AWA’s federal licensing and inspection requirements because prospective buyers in actually seeing the animals for sale already provide the “public oversight” that the new Rule imposes.
It is the Internet vendors and other “unseen” sellers that must be licensed and inspected for “minimum standards of care” under the new Rule.
According to APHIS there are many exceptions granted by the new Rule because the nature of the exemption recipients’ operations provides the requisite “public oversight.” Included are animal rescue groups, public and private pounds and shelters, and humane societies. Also, those who breed and sell working dogs; sell rabbits for food, fiber and fur; breed to preserve bloodlines; children involved in 4H projects; operations that raise, buy, and sell farm animals for food, fiber, and fur; and businesses dealing only with fish, reptiles and other cold-blooded animals.
There are other exemptions: No license is required if someone sells dogs, cats, domestic pocket pets born and raised on one’s own premises where buyers can physically observe them before or during purchase. Nor if one sells birds, rats, mice, amphibians, and reptiles.
Besides these and other exemptions the new Rule increases from 3 to 4 a seller’s breeding females (dogs, cats or small exotic/wild pocket pets) before being required to be licensed and inspected under the AWA. These people are considered by APHIS as “hobby breeders,” whose activities usually occur under circumstances and in places (such as private homes) where public oversight is present, thus removing the need for APHIS oversight. (APHIS already regulates wholesale commercial breeders.)
From the foregoing, it is obvious that the new Rule — as most government administrative rules — is lengthy and complicated. It raises at least as many questions as it answers. For example, must the actual purchaser himself observe the animal? Probably not; he can have someone else do it because there would still be public oversight. Must the observation be in a pet store? No, as long as the purchaser or someone acting on his behalf is physically present. Can breeders with 5 or more breeding females sell on the Internet? Yes, but a license is required. Can breeders with 5 or more breeding females sell on the Internet without a license? Yes, if the “physically seen” requirement is satisfied. Can a 4-or-less breeder sell on the Internet without a license? Yes.
The new Rule raises other questions, most of which are answered by recourse to the underlying principle for which the Rule was designed: Public oversight.
APHIS sums up the new Rule this way:
The entities affected by the rule are likely to be considered small. They are persons who sell their animals to any buyer who does not physically observe the animals prior to purchase and/or to take custody of the animals after purchase, such as sales conducted exclusively over the Internet.
Persons who maintain four or fewer breeding female dogs, cats, and/or small exotic or wild mammals will be exempt from the new licensing requirements.
Persons who derive less than $500 gross income from the sale of animals, other than dogs, cats, or wild or exotic animals will also be exempt from the new licensing requirements. In addition, some current licensees will no longer be required to be licensed due to the increase of the exemption threshold from three to four breeding females.
Doubtless, when the animal protection movement became aware of the proposed new Rule, and then its final version, there was great satisfaction. That satisfaction was understandable because, at least on the surface, it does provide some measure of protection not so much for the animals, but instead for the consumer. In other words, the new APHIS Rule is not an animal protection provision but instead a consumer protection measure-just like APHIS’s recent Rule regarding the importation of puppies. Consumer protection is not synonymous with animal rights.
Lest anyone misunderstand ISAR’s position on the subject of commercial retail sales of companion animals, we want it clearly understood that we oppose them. So much so that we have prepared a Memorandum and a Model Statute designed to end such sales.
Part III, to be published on October 15, provides the highlights of each.