The proposed rule states,
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
From what I understand from what several different people have said or reported from conversations with APHIS, the issue here may end up being how the term "place of business" is interpreted. This may be where the much-discussed "face to face" exemption comes in.
If the term "place of business" is interpreted to mean any place where you or your employees/representatives do business, then a showroom, parking lot, the buyer's home or another neutral location can become your "place of business" for the purposes of the rule. If that is the case, then wherever you or your authorized representative are present during the transaction becomes your "place of business."
We have been doing some research, and have not yet found a clear legal precedent for a place that the seller does not own, have control of, or use on a regular basis being considered their "place of business" for legal purposes. But this is definitely an interesting angle of thought. If anyone can point to resources, federal laws, or legal precedents that support this, please share them.
It seems it would be far more clear if APHIS simply wrote the law to state that transactions would be considered exempt direct retail sales if the buyer had the opportunity to refuse or return the animal upon seeing it, if that's what they're going for. But the angle of "place of business" being equivalent to a "face to face transaction" is interesting.
Hopefully APHIS will be clarifying that more thoroughly in the final rule. Asking in our comments to APHIS for the "face to face" exemption mentioned in their FAQ to be clarified very thoroughly in the actual rule would be good.
Of course, even the face-to-face exemption still leaves the issue of shipping animals or delivering them sight-unseen to a buyer. Leaving comments for APHIS explaining that sight-unseen transactions have been routine long before the advent of the internet, explaining how buyers can research to make informed purchasing decisions when buying animals in this type of situation, etc. would be very helpful.
It might also be useful to point out other potential ways of dealing with the stated problem of people purchasing animals sight-unseen and having them turn out to be ill or otherwise not as advertised, and what recourse and safety measures could be used to handle that situation.
The proposed rule: http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0003-0001
APHIS FAQ sheet: http://www.arba.net/PDFs/APHIS_Fact_Sheet.pdf