Our thoughts on the APHIS fact sheet and ARBA/APHIS teleconference notes

[**Update** We have taken the Karen Horn conversation post offline for the moment, until we can further clarify a few points and allow ARBA and APHIS time to communicate with each other to ensure accuracy and clarity in their statements. Since APHIS has extended the comment period, this makes addressing these issues a bit less time-critical. At this time we are only going to address statements that have officially been published to the public.

Meanwhile, see our post, What is a place of business? at  http://waanimal.blogspot.com/2012/07/what-is-place-of-business.html for another possible angle on the "face to face" exemption mentioned in the APHIS FAQ document.]

APHIS has come out with a new FAQ document on the proposed rule, APHIS 2011-0003. http://www.aphis.usda.gov/publications/animal_welfare/2012/retail_pets_faq.pdf

The problem is, the FAQ document and what APHIS is reported as telling some people over the telephone seems to directly contradict the actual wording in the proposed rule.

For instance, the FAQ document says,

"Q.  How will this affect Internet, phone- and mail 
order retailers?
A.  The proposal will affect these retailers if they
currently sell their pet animals to buyers sight-unseen.
Pet animal retailers will have a choice. They can
either sell their animals to buyers who physically
enter a place of business or residence to observe
the animals available for sale prior to purchase or to
take custody of the animals after purchase, or they
can obtain a license under the AWA and allow APHIS
inspectors to inspect their facility."

But then it goes on to say,

"Q. How will this affect retailers who sell their animals to buyers in face-to-face transactions at a location other than their own premises?
A. The proposed rule is designed to close a loophole in the current regulations that allows pet animals to be sold sight-unseen, without any oversight by the public or APHIS. Pet animal retailers who sell their animals to their customers in face-to-face transactions at a location other than their own premises are subject to some degree of public oversight and therefore are not the focus of this proposed rule and would not need to obtain a license."

And,

"Q. How would this proposal affect rescue groups that participate in off-site adoption events?
A. As mentioned above, persons who engage in face-to-face transactions at a location other than their premises, which include off-site adoption events, are subject to some degree of public oversight and therefore are not the focus of this proposed rule and would not need to obtain a license."

http://www.aphis.usda.gov/publications/animal_welfare/2012/retail_pets_faq.pdf

Notice that they say these face-to-face transactions are "not the focus" of the proposed rule--they do not specifically say that they are not actually included in the proposed rule. They do not even state here that they will be changing the wording in the final draft of the rule to clearly and specifically allow a face-to-face exemption. Hopefully that will be the case. We encourage people to request that in their comments to APHIS.

Unless they actually are going to change the wording in the rule itself, this could mean little or nothing in practicality. It appears tatamount to saying that, while these transactions may technically violate the proposed rule, they are supposedly not going to enforce the rule in these situations. This does NOT, however, guarantee that it will not be enforced as written in the future.

It's never a good idea to take the lawmakers' or lobbyists' word that a law will not be enforced as it is written. They can tell you from here to the moon that they won't enforce the law the way it is written, but there is nothing to hold them to such assurances. What is going to ultimately matter is what the rule or law actually says in plain language, not what they told you over the phone or in some fact sheet about how it's not really going to do what it says it will do. You will not be able to use, "But so-and-so said that someone at APHIS told them over the phone that they weren't actually going to enforce the rule the way it is written" as a valid defense in court.

Even if they don't intend at this point to enforce it as written in most situations, you can guarantee that organizations such as PeTA and HSUS will quickly be putting pressure on them to enforce it stringently it as written, and will be making reports about facilities to try to force APHIS to shut down breeders.

In actuality there is nothing in the actual proposed rule that contains a clearly delineated "face to face" exemption that would apply at shows, sales at a neutral location, etc. The rule itself requires that all pet buyers physically enter your actual home or place of business. 

[Update: The definition of "place of business" itself may offer some sort of loophole, however: http://waanimal.blogspot.com/2012/07/what-is-place-of-business.html ]

The proposed APHIS rule 2011-0003 says,

"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)."

The proposed wording of the actual law is as follows:

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;
* * * * *

[emphasis added]

http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0003-0001


There is a similar disconnect in ARBA's report about their teleconference with APHIS. In addition to the "face to face" exemption previously mentioned, the teleconference notes also say,

2) If you require licensing
a) There is only an application
b. No inspection is required unless abuse is reported but a pre or post licensing visit may be done at the applicant's request. 
c.Upon receiving an abuse complaint, depending on the nature of the complaint, the USDA/APHIS will arrange to visit the facility without warning.

http://www.arba.net/PDFs/USDA_Teleconference07112012.pdf

[Note: This post has been updated to reflect ARBA's 7/13/2012 correction of what was apparently a typo or misunderstanding regarding inspections being unannounced. There will likely be further updates as ARBA and APHIS communicate further with each other, as some issues will be discussed and clarified more next week.]

The Animal Welfare Act itself, the AWA Regulations, APHIS' published standard operating procedures, and and APHIS's numerous Fact Sheets state that inspections are required in order to obtain and maintain a USDA license. The APHIS publications also make it very clear that routine APHIS-initiated inspections, as well as inspections following up on a complaint, will be unannounced.

This requirement for inspections of licensed facilities is encoded in The Animal Welfare Act:

"Sec. 2133. Licensing of dealers and exhibitors
". . . Provided, That no such license shall be issued until the dealer or exhibitor shall have demonstrated that his facilities comply with the standards promulgated by the Secretary pursuant to section 2143 of this title."
"Sec. 2146. Administration and enforcement by Secretary
-STATUTE-
(a) Investigations and inspections 

The Secretary shall make such investigations or inspections as he deems necessary to determine whether any dealer, exhibitor, intermediate handler, carrier, research facility, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter or any regulation or standard issued thereunder, and for such purposes, the Secretary shall, at all reasonable times, have access to the places of business and the facilities, animals, and those records required to be kept pursuant to section 2140 of this title of any such dealer, exhibitor, intermediate handler, carrier, research facility, or operator of an auction sale. The Secretary shall inspect each research facility at least once each year and, in the case of deficiencies or deviations from the standards promulgated under this chapter, shall conduct such follow-up inspections as may be necessary until all deficiencies or deviations from such standards are corrected."

http://www.aphis.usda.gov/animal_welfare/downloads/awa/awa.pdf

Both prelicensing and routine inspections are required in the AWA Regulations (the codification of the rules the Secretary "deems necessary" as instructed in the AWA--the rules about how the AWA is enforced):

"Sec. 2.3 Demonstration of compliance with standards and regulations.
(b) Each applicant for an initial license must be inspected by APHIS and
demonstrate compliance with the regulations and standards, as required in paragraph (a) of this section, before APHIS will issue a license."
"Sec. 2.126 Access and inspection of records and property.
(a) Each dealer, exhibitor, intermediate handler, or carrier, shall, during business hours, allow APHIS officials:
(1) To enter its place of business;
(2) To examine records required to be kept by the Act and the regulations in this part;
(3) To make copies of the records;
(4) To inspect and photograph the facilities, property and animals, as the APHIS officials consider necessary to enforce the provisions of the Act, the regulations and the standards in this subchapter; and
(5) To document, by the taking of photographs and other means, conditions and areas of noncompliance.
(b) The use of a room, table, or other facilities necessary for the proper examination of the records and inspection of the property or animals must be extended to APHIS officials by the dealer, exhibitor, intermediate handler or carrier, and a responsible adult shall be made available to accompany APHIS officials during the inspection process."

"Business hours means a reasonable number of hours between 7 a.m. and 7 p.m., Monday through Friday, except for legal Federal holidays, each week of the year, during which inspections by APHIS may be made." 

http://www.aphis.usda.gov/animal_welfare/downloads/awr/awr.pdf

The USDA Inspection Requirements document makes it very clear that, with the exception of prelicense inspections, all inspections must be unannounced:

"ATTEMPTED INSPECTION
All animal welfare inspections, with the exception of prelicense inspections, are to be conducted on an unannounced basis. An attempted inspection occurs when an authorized person is not available to accompany the inspector, and no inspection is conducted. NOTE: The person accompanying the inspector must be an adult, i.e. 18 years of age or older.
If nobody is present at the facility, you should call the phone number(s) provided by the licensee/registrant to contact him/her, and determine if an authorized person can be at the facility within 30 minutes. You should wait for 30 minutes, and if nobody shows up, you should cite section 2.126(b), and the narrative should read: 'On (date) at (time), licensee failed to have a responsible person available to conduct an animal welfare inspection.'"

"PRELICENSE INSPECTION
An applicant's facility must meet all applicable regulations and standards to obtain a license. Prelicense inspections are scheduled at a time agreeable to the applicant and the inspector. In addition to determining if a facility is in full compliance, prelicense inspections are the best time to educate the applicant about the AWA regulations and standards. Required written records must be completed and inspected during a prelicense inspection in order to consider the facility in compliance, including the PVC . . . There must be a written record of animals on hand with as much of the required information completed as possible." 

http://www.aphis.usda.gov/animal_welfare/downloads/Inspection_Requirements.PDF

[Note that not being present for an unannounced inspection is considered an Animal Welfare Act violation and will be written up as such, with potentially severe consequences.]

The Animal Welfare Act Fact Sheet published by the USDA says that inspections based on complaints are IN ADDITION to regular inspections, not instead of them:

"Before APHIS will issue a license, the applicant must be in compliance with all standards and regulations under the AWA. To ensure that all licensed and registered facilities continue to comply with the Act, APHIS inspectors regularly make unannounced inspections. . . . In addition to conducting regular inspections, APHIS will perform inspections in response to public input about the conditions of regulated facilities. Concerned individuals are also encouraged to inform APHIS about facilities that should be licensed or registered."

http://www.aphis.usda.gov/publications/animal_welfare/content/printable_version/fs_awawact.pdf

The APHIS Fact Sheet, Animal Care: Compliance Inspections, says,

"APHIS officials--veterinarians or qualified animal care inspectors employed by APHIS and trained to identify potential violations of the AWA and its regulations--conduct unannounced inspections of every licensed or registered facility in the country."http://www.aphis.usda.gov/publications/animal_welfare/content/printable_version/fs_compliance_inspection.pdf 
[emphasis added]

This document goes into quite a bit of detail about what these inspections involve and what standards must be met, including the requirement that "the interior of a facility must be substantially impervious to moisture" and that "puppies and kittens should be separated from adult animals other than their mothers," as well as requirements for things like climate control.

The APHIS fact sheet, Questions and Answers: Regulation of Dog and Cat Breeders and Dealers, gives some clue about how often such inspections take place:

"APHIS inspectors from the Animal Care program conduct unannounced compliance inspections to ensure that the animals receive humane care and treatment. . . . Depending on a facility's compliance status, it may be inspected once every year or so, or more often if the facility requires more frequent monitoring or in-depth inspections. APHIS inspectors always have the option of inspecting as often as they feel necessary and as resources allow; they also follow up on legitimate complaints from concerned citizens and organizations.

http://www.aphis.usda.gov/publications/animal_welfare/content/printable_version/faq_animal_dealers.pdf

Besides, even **if** inspections were solely complaint-driven, the name and address of anyone holding a USDA license are published on the USDA website and made available to the public. All any organization with the goal to shut down breeders would have to do is go through the list and get people to make complaints about every breeder who holds a license. They don't even need to have been to your place to file a complaint. APHIS specifically mentions in their Complaint Inspection Form that it is common to receive complaints from "animal protection groups" and that anonymous complaints are allowed.
http://www.aphis.usda.gov/animal_welfare/2011_Inspection_Guide//6.6%20Complaint%20Inspection.pdf

Remember, a violation can be something as simple as a cobweb on the ceiling, a spot of rust on a cage, an open container of feed or bedding (even if you're currently in the act of using it), not having paperwork in order or available on site (including detailed information about everyone you obtain animals from), having a permeable surface somewhere that an animal could come into contact with it, allowing puppies or kittens to interact with other adult animals besides their mother, or not being present when an unannounced inspection occurs.

To discuss the ARBA document further, there are several other issues that we feel need clarification or correction:
http://www.arba.net/PDFs/USDA_Teleconference07112012.pdf

For example,

"1) There exist a series of exemptions the licensing that preclude  most rabbit breeders from needing licensing. [sic]
a) Due to the number of exemptions, if you do not see one that covers your specific situation below, please contact the Legislative Committee to discuss.
b) Exhibition, commercial and livestock are all exempt.  The proposed regulation only applies to rabbits sold for use as pets.
c) Only animals sold without a face-to-face meeting are to be included in the $500 limit

Just to clarify, a $500 limit for unlicensed activity definitely applies to animals sold for exhibition purposes, and for commercial purposes that are covered in the AWA. There is no exemption from USDA licensing requirements for exhibition or "commercial" sales. These categories aren't exempt from licensing requirements; it's just that this particular rule addresses only pet sales.

Cat/dog/rabbit shows and things like competitions and agricultural displays at county fairs do not qualify as "exhibitions" under APHIS definition and do not trigger a licensing requirement under the exhibition clause. But there is no blanket exemption for exhibition animals; in fact, exhibition animals are specifically covered under the AWA and required to be licensed if the limit is exceeded.

It doesn't matter how face-to-face the meeting is if you're selling animals for experimentation, exhibition (by USDA definition), wholesale as pets, or the other specific AWA-covered purposes; those animals are definitely included in the $500 limit. APHIS does say in their FAQ sheet that animals sold at retail as pets are exempt if the sale is face-to-face.

Livestock are only exempt if they are not being sold for a covered purpose (i.e. exhibition, research, wholesale, pet) and are being used for specific exempt purposes such as food and fiber. Livestock being sold for a purpose such as a petting zoo, in a performance such as a circus or magic show, as a prop for professional photos, or to advertise a product (all exhibition under the rule) would NOT be exempt and would count toward the $500 limit.

[NOTE: On July 19. 2012 we verified with Dr. Rushin of APHIS that the $500 threshold is calculated by adding up all sales any category of AWA-covered situation, over the course of 1 year (12 months). So if you sell $200 worth of rabbits at wholesale as pets in January, sell $200 worth of show rabbits shipped or transported to the buyer in a non-face-to-face transaction in June, and sell $101 worth to a petting zoo in December, you are over the $500 amount and need to be USDA licensed. We will be writing a more thorough post on the $500 licensing threshold soon.]

According to the way the definitions are stated in the AWA Regulations, rabbits ONLY qualify for exemption as livestock " when they are used solely for purposes of meat or fur ."

However, there is some possible good news here, according to the ARBA notes on their teleconference:

"A) Discussions of breeder to breeder sales sight unseen will be addressed next week.
B) Discussions concerning show and breeding rabbits receiving their own categorical exemption  are ongoing and will be discussed next week."

Here are various passages from the Animal Welfare Act that are relevant to issues discussed in this post:

"Sec. 2131. Congressional statement of policy . . . The Congress further finds that it is essential to regulate, as provided in this chapter, the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations engaged in using them for research or experimental purposes or for exhibition purposes or holding them for sale as pets or for any such purpose or use."
Sec. 2132. Definitions
-STATUTE-
When used in this chapter -
(f) The term "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, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes, except that this term does not include -(i) a retail pet store except such store which sells any animals to a research facility, an exhibitor, or a dealer; or(ii) any person who does not sell, or negotiate the purchase or sale of any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year;
(g) The term "animal" means any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is beingused, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet; but such term excludes (1) birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research, (2) horses not used for research purposes, and (3) other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. With respect to a dog, the term means all dogs including those used for hunting, security, or breeding purposes;


(h) The term "exhibitor" means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not; but such term excludes retail pet stores, organizations sponsoring and all persons participating in State and country fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary;

Sec. 2132. Definitions
-STATUTE-
When used in this chapter -
(f) The term "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, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes, except that this term does not include -(i) a retail pet store except such store which sells any animals to a research facility, an exhibitor, or a dealer; or(ii) any person who does not sell, or negotiate the purchase or sale of any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year;
(g) The term "animal" means any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet; but such term excludes (1) birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research, (2) horses not used for research purposes, and (3) other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. With respect to a dog, the term means all dogs including those used for hunting, security, or breeding purposes;
(h) The term "exhibitor" means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not; but such term excludes retail pet stores, organizations sponsoring and all persons participating in State and country fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary;
Sec. 2134. Valid license for dealers and exhibitors required
-STATUTE-
No dealer or exhibitor shall sell or offer to sell or transport or offer for transportation, in commerce, to any research facility or for exhibition or for use as a pet any animal, or buy, sell, offer to buy or sell, transport or offer for transportation, in commerce, to or from another dealer or exhibitor under this chapter any animals, unless and until such dealer or exhibitor shall have obtained a license from the Secretary and such license shall not have been suspended or revoked."

http://www.aphis.usda.gov/animal_welfare/downloads/awa/awa.pdf

The AWA Standards flesh it out more:

" . . . Animal means any live or dead dog, cat, nonhuman primate, guinea pig,hamster, rabbit, or any other warmblooded animal, which is being used, or is intended for use for research, teaching, testing, experimentation, or exhibition purposes, or as a pet. This term excludes birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research; horses not used for research purposes; and other farm animals, such as, but not limited to, livestock or poultry used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. With respect to a dog, the term means all dogs, including those used for hunting, security, or breeding purposes. . . . " 

. . . Class ``A'' licensee (breeder) means a person subject to the licensing requirements under part 2 and meeting the definition of a ``dealer'' (Sec. 1.1), and whose business involving animals consists only of animals that are bred and raised on the premises in a closed or stable colony and those animals acquired for the sole purpose of maintaining or enhancing the breeding colony. 

Class ``B'' licensee means a person subject to the licensing requirements under part 2 and meeting the definition of a ``dealer'' (Sec. 1.1), and whose business includes the purchase and/or resale of any animal. This term includes brokers, and operators of an auction sale, as such individuals negotiate or arrange for the purchase, sale, or transport of animals in commerce. Such individuals do not usually take actual physical possession or control of the animals, and do not usually hold animals in any facilities. A class ``B'' licensee may also exhibit animals as a minor part of the business. 

Class ``C'' licensee (exhibitor) means a person subject to the licensing requirements under part 2 and meeting the definition of an ``exhibitor'' (Sec. 1.1), and whose business involves the showing or displaying of animals to the public. A class ``C'' licensee may buy and sell animals as a minor part of the business in order to maintain or add to his animal collection. . . .   

". . . 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, unless such store sells any animal to a research facility, an exhibitor, or a dealer (wholesale); 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. . . "

" . . . Exhibitor means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary. This term includes carnivals, circuses, animal acts, zoos, and educational exhibits, exhibiting such animals whether operated for profit or not. This term excludes retail pet stores, horse and dog races, organizations sponsoring and all persons articipating in State and county fairs, livestock shows, rodeos, field trials, coursing events, purebred dog and cat shows and any other fairs or exhibitions intended to advance agricultural arts and sciences as may be determined by the Secretary. . . . "

. . . Exotic animal means any animal not identified in the definition of ``animal'' provided in this part that is native to a foreign country or of foreign origin or character, is not native to the United States, or was introduced from abroad. This term specifically includes animals such as, but not limited to, lions, tigers, leopards, elephants, camels, antelope, anteaters, kangaroos, and water buffalo, and species of foreign domestic cattle, such as Ankole, Gayal, and Yak.

. . . Farm animal means any domestic species of cattle, sheep, swine, goats, llamas, or horses, which are normally and have historically, been kept and raised on farms in the United States, and used or intended for use as food or fiber, or for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. This term also includes animals such as rabbits, mink, and chinchilla, when they are used solely for purposes of meat or fur, and animals such as horses and llamas when used solely as work and pack animals. . . " 

". . . Pet animal means any animal that has commonly been kept as a pet in family households in the United States, such as dogs, cats, guinea pigs, rabbits, and hamsters. This term excludes exotic animals and wild animals. . . . "

". . . Retail pet store means 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 coldblooded species. Such definition excludes-
-
(1) Establishments or persons who deal in dogs used for hunting, security, or breeding purposes;
(2) 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.;
(3) Any establishment or person selling warmblooded animals (except birds, and laboratory rats and mice) for research or exhibition purposes; and
(4) Any establishment wholesaling any animals (except birds, rats and mice).
(5) Any establishment 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. . . . "

[Emphasis added; note that these exclusions are NOT exemptions from licensing requirements; they are only exclusions from the definition of a retail pet store.]

PART 2_REGULATIONS--Table of Contents
Subpart A_Licensing
Sec. 2.1 Requirements and application. 

(a)(1) Any person operating or intending to operate as a dealer, exhibitor,or operator of an auction sale, except persons who are exempted from the licensing requirements under paragraph (a)(3) of this section, must have a valid license. A person must be 18 years of age or older to obtain a license. A person seeking a license shall apply on a form which will be furnished by the AC Regional Director in the State in which that person operates or intends to operate. The applicant shall provide the information requested on the application form, including a valid mailing address through which the licensee or applicant can be reached at all times, and a valid premises address where animals, animal facilities, equipment, and records may be inspected for compliance. The applicant shall file the completed application form with the AC Regional Director.

(2) If an applicant for a license or license renewal operates in more than one State, he or she shall apply in the State in which he or she has his or her principal place of business. All premises, facilities, or sites where such person operates or keeps animals shall be indicated on the application form or on a separate sheet attached to it. The completed application form, along with the application fee indicated in paragraph (c) of this section, and the annual license fee indicated in table 1 or 2 of Sec. 2.6 shall be filed with the AC Regional Director.  

(3) The following persons are exempt from the licensing requirements under section 2 or section 3 of the Act:
(i) 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;
(ii) 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 and is not otherwise required to obtain a license;
(iii) Any person who maintains a total of three (3) or fewer breeding female dogs, cats, and/or small exotic or wild mammals, such as hedgehogs, degus, spiny mice, prairie dogs, flying squirrels, and jerboas, and who sells 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, and is not otherwise required to obtain a license. This exemption does not extend to 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, nor to 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, nor to 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;
(iv) Any person who sells fewer than 25 dogs and/or cats per year, which were born and raised on his or her premises, for research, teaching, or testing purposes or to any research facility and is not otherwise required to obtain a license. This exemption does not extend to any person residing in a household that collectively sells 25 or more dogs and/or cats, regardless of ownership, nor to any person acting in concert with others where they collectively sell 25 or more dogs and/or cats, regardless of ownership. The sale of any dog or cat not born and raised on the premises for research purposes requires a license;
(v) Any person who arranges for transportation or transports animals solely for the purpose of breeding, exhibiting in purebred shows, boarding (not in association with commercial transportation), grooming, or medical treatment, and is not otherwise required to obtain a license;
(vi) Any person who buys, sells, transports, or negotiates the sale, purchase, or transportation of any animals used only for the purposes of food or fiber (including fur);
(vii) 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;
(viii) Any person who buys animals solely for his or her own use or enjoyment and does not sell or exhibit animals, or is not otherwise required to obtain a license;

[emphasis added]


http://www.aphis.usda.gov/animal_welfare/downloads/awr/awr.pdf

The language in this section and the definition of "retail pet store" is part of what the proposed APHIS rule would change, adding the language  "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 removing and changing the other phrases noted near the beginning of this article.

The rule also makes some other changes we have not discussed in this post, such as changing the number of breeding dog, cat or exotic animal females a breeder can have and be exempt from licensing requirements if they meet certain criteria.


More information and sources: 

Here is the link where you can make comments directly to APHIS (as many as you like; you're not limited to just one) on the proposed new rule which would drastically widen the pool of people required to be licensed: http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0003-0001

The Cavalry Group has put up a website with some information and a summary put together by law experts: http://www.thecavalrygroup.com/aphis.php

They also have a tool to make it easy to email your congressional representatives about this issue (this is important because the new rule must be approved by Congress). You can use their suggested wording, or (preferably, for more impact) revise and edit it to reflect your own situation and wording. (While you're at it, it would also be a good idea to write another note asking them NOT to support the PUPS (Puppy Uniform Protection and Safety) Act, another very similar law backed by the HSUS and other animal supremacy groups that some congressfolks are trying to pass.)
http://the-cavalry-group.rallycongress.com/6980/urge-congress-take-action-to-support-cavalry-group-mission/

Here are the published regulations pertaining to the Animal Welfare Act: http://www.aphis.usda.gov/animal_welfare/downloads/awr/awr.pdf

  Washington Animal Watch Posts about the proposed USDA/APHIS rule:

New USDA rule would force small breeders to become licensed. http://waanimal.blogspot.com/2012/06/new-usda-rule-would-force-millions-of.html

Why not just apply for a USDA license? http://waanimal.blogspot.com/2012/06/why-not-just-apply-for-usda-license.html

 Images Opposing PUPS and the APHIS proposal (for posting on your own site, Facebook page, etc.) http://waanimal.blogspot.com/2012/06/ads-opposing-pups-and-aphis-proposal.html

Buying Animals at Shows: http://waanimal.blogspot.com/2012/06/buying-animals-at-shows.html

Our thoughts on the APHIS fact sheet and ARBA/APHIS teleconference notes: http://waanimal.blogspot.com/2012/07/never-trust-lawmakers-who-say-they.html


~~ Copyright Washington Animal Watch, 2012 ~~


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