Demand that the USDA and APHIS modify its final Rule redefining “retail pet store” to prohibit sale of companion animals (Part I)

i September 15, 2014




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 I)


Among other duties delegated by Congress to USDA through APHIS is enforcement of the Animal Welfare Act (AWA).

ISAR, together with many other animal protection organizations, has long objected to the fundamental premise of the AWA: That humans can do virtually whatever they want to animals so long as it’s done “humanely.” To accomplish that specious goal, the principal task of APHIS has been to license certain categories of animal-related activities (e.g., puppy mills) and then inspect those activities for compliance with the “humane” criteria of the AWA.

For the purpose of this essay, ISAR is going to put aside all of our and others’ complaints about AWA and APHIS, of which there are many, and focus solely on a recent development of crucial importance to companion animals and organizations such as ISAR whose mission is to protect those animals from abuse and exploitation.

Since the Internet became widely used, it has been too easy for companion animals, mostly dogs, to be sold by means of the Internet. Not only to be sold, but to be sold sight-unseen. 

Everyone in the animal protection movement has heard heartbreaking stories of dogs (and other animals) purchased sight unseen through the Internet, then integrated into a loving family only to become ill from existing ailments, suffer, and often die.

In 2010 the USDA Office of Inspector General conducted an audit which revealed that 80% of the breeders who were sampled had not been inspected for the health of their animals or to ascertain if they were providing humane treatment.

The breeders got away with their deplorable conduct because even though they were Internet sellers they claimed to be “retail pet stores” as defined in the previous APHIS regulations. As such, there was no APHIS oversight, nor any consumer oversight.

To deal with this serious problem, in May 2012 APHIS published a new proposed Rule to bring retail sellers under its jurisdiction. In 90 days, some 210,000+ comments from the public were received. Also, some 213,000 petition signatures were submitted by organizations on each side of the issue.

In the process of initiating and developing the proposed and final Rule, APHIS produced hundreds of pages of information and commentary.

Finally, in June 2013 APHIS published a “Regulatory Impact Analysis and Final Regulatory Flexibility Analysis to accompany a new final Rule constituting a “Revision of the Definition of Retail Pet Store.” Its Summary explains the Rule’s rationale [all following italics and bracketed commentary has been supplied by ISAR].

APHIS is revising the definition of retail pet store and related regulations in order to ensure that the definition of retail pet store in the regulations is consistent with the Animal Welfare Act (AWA),thereby bringing more pet animals sold at retail under the protection of the AWA. [Accepting for sake of argument that AWA does in fact protect animals, in APHIS’s view revising-actually enlarging — the definition of “retail pet store” will increase its protection of animals.]

To ensure that animals sold at retail receive humane handling, care, and treatment, we are revising the definition of retail pet store so that it only includes those places of business or residence at which the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase. [This sentence is awkwardly expressed. It intends to say that under the new definition a “retail pet store” can only be a “business or residence at which theseller, buyer, and the animal available for sale are physically presentso that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase.” As we shall see, this sentence is the core of APHIS’s redefinition of “retail pet store.” The idea is that unseen purchases of animals, primarily but not exclusively from the Internet, will be disallowed except under what APHIS considers narrow circumstances.]

We are also increasing 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 if he or she sells only the offspring of those animals born and raised on his or her premises, regardless if the offspring of those animals are sold at retail or wholesale. [This exemption, as we’ll explain later, is intended to foster the rationale of APHIS’ redefinition].

In addition, we are removing the limitation on the source of gross income from the licensing exemption in the regulations for 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. [This change, as we’ll explain later, is intended to foster the rationale of APHIS’ redefinition].

This rule will primarily affect dog breeders who maintain more than four breeding females at their facilities, sell the offspring as pets, and whose buyers are not all physically present to observe the animals prior to purchase and/or to take custody of the animals after purchase. [To be explained later].

The rule may also affect some cat and rabbit breeders. While the scope of this rule applies to certain other animals, based on our experience,most retailers of animals other than dogs will meet the amended definition of retail pet store and continue to be exempt from regulation.

In other words, by redefining “retail pet store” to prevent sale of companion animals that are not physically seen by purchasers the retail pet store sellers and their operations are brought within the AWA and become subject to licensing and inspections.

Accepting for sake of argument that allowing most breeding and retail sale of companion animals is both moral and good public policy — which ISAR emphatically denies –– APHIS’s redefinition appears on the surface to serve a legitimate purpose. Assuming, of course, that APHIS’s standards for “humane” treatment are high enough, and that there is a high level of licensing requirements and inspection. And penalties for violation. ISAR remains skeptical.

As to the policy, APHIS argued that the benefits of the new Rule outweigh its costs. Among the former, obviously, is that healthier pets will be sold and thus purchasers will be spared unnecessary heartbreak and expenses. More pets will survive illness, suffering, shelters, and death. The new Rule shifts responsibility for the animals’ health from the unsuspecting buyer to the seller. Shelters and taxpayers will be spared the costs imposed by unscrupulous Internet sellers. Transfer of animal diseases, rabies for example, will be reduced.

That policy can be summarized by two words: “public oversight” — the foundational premise upon which the new Rule rests.

Part II, to be published on October 1, will discuss the nuts and bolts of the new Rule.