Animal Welfare; Petition for Rulemaking

DEPARTMENT OF AGRICULTURE

9 CFR Parts 1 and 3

[Docket No. 97-018-1]

Animal Welfare; Petition for Rulemaking

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Notice of petition and request for comments.

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SUMMARY: We are notifying the public of our receipt of a petition for

rulemaking, and we are soliciting public comment on that petition. The

petition, sponsored by the Doris Day Animal League, requests that we

amend the Animal Welfare regulations by redefining the term ``retail

pet store'' and by including dealers of dogs intended for hunting,

security, and breeding in the regulations.

DATES: Consideration will be given only to comments received on or

before May 27, 1997.

ADDRESSES: Please send an original and three copies of your comments to

Docket No. 97-018-1, Regulatory Analysis and Development, PPD, APHIS,

suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please

state that your comments refer to Docket No. 97-018-1. Anyone wishing

to see copies of comments received, or the petition, including

appendices, may do so by coming to USDA, room 1141, South Building,

14th Street and Independence Avenue SW., Washington, DC, between 8 a.m.

and 4:30 p.m., Monday through Friday, except holidays. Please call

ahead on (202) 690-2817 to facilitate entry into the comment reading

room.

FOR FURTHER INFORMATION CONTACT: Dr. Bettye Walters, Veterinary Medical

Officer, AC, APHIS, 4700 River Road Unit 84, Riverdale, MD 20737-1234,

(301) 734-7833.

SUPPLEMENTARY INFORMATION:

Background

Under the Animal Welfare Act (the Act) (7 U.S.C. 2131 et seq.), the

Secretary of Agriculture is authorized to promulgate standards and

other requirements governing the humane handling, housing, care,

treatment, and transportation of certain animals by dealers, research

facilities, exhibitors, and carriers and intermediate handlers.

Regulations established under the Act are contained in 9 CFR parts 1,

2, and 3. 9 CFR part 1 contains definitions for terms used in 9 CFR

parts 2 and 3. Subpart A of 9 CFR part 3 contains specific standards

for the humane handling, care, treatment, and transportation of dogs

and cats.

A petition for rulemaking, sponsored by the Doris Day Animal

League, requests two changes to the regulations at 9 CFR parts 1 and 3.

The requested changes are: (1) to redefine the term ``retail pet

store'' in 9 CFR part 1; and (2) to regulate dealers of dogs intended

for hunting, security, and breeding under the provisions applicable to

other dealers of dogs in 9 CFR part 3. The petition is printed below. A

brief description of the appendices referred to in the petition appears

at the end of the petition.

Comments are invited on the proposed changes discussed in the

petition. In particular, we are soliciting comments addressing the

following questions:

1. Should the definition of ``retail pet store'' in 9 CFR part 1 be

revised to read ``a non-residential business establishment used

primarily for the sale of pets to the ultimate customer'?

2. Should dealers of dogs intended for hunting, security, and

breeding be subject to the applicable regulations at 9 CFR part 3,

subchapter A''?

Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.2(g).

Done in Washington, DC, this 19th day of March 1997.

Terry L. Medley,

Administrator, Animal and Plant Health Inspection Service.

Petition Before the U.S. Department of Agriculture

Petition for Rulemaking and Collateral Relief; Doris Day Animal

League, 227 Massachusetts Avenue, NE, Suite 100, Washington, DC

20002

June 22, 1995.

I. Introduction

Pursuant to the Administrative Procedure Act, 5 U.S.C. Sec. 553(e),

the Doris Day Animal League, a national animal protection organization,

petitions the Department of Agriculture

[[Page 14045]]

to: (1) change the department policy of excluding from regulation

hunting, security and breeding dog dealers, under the Animal Welfare

Act (``Act''), 7 U.S.C. Sec. 2131 et seq.; and, (2) amend regulations

under the Act, that currently define the term ``retail pet store'' in

the Act as all retail pet ``outlets.'' Doris Day Animal League proposes

that the definition of ``retail pet store'' under USDA regulations be a

``non-residential business establishment used primarily for the sale of

pets to the ultimate consumer.''

II. Nature of Petitioner's Interests

Petitioner, the Doris Day Animal League (DDAL), is a non-profit,

charitable corporation with principal offices in Washington, D.C. The

DDAL represents a membership and mailing constituency of more than

298,000 persons nationwide. The primary goal of DDAL is to promote

humane care and treatment of all animals, including animals bred and

raised in puppy mills for pets or hunting dogs.

Petitioner DDAL has used substantial resources in seeking to

correct the deficiencies in the Animal Welfare Act,1 regulations

under the Act 2 and the enforcement of regulations promulgated

pursuant to the Act. DDAL actively participated in the promulgation of

regulations under the 1985 amendments to the Act and in monitoring the

enforcement of the Act as it relates to Class ``A'' dealers. DDAL

played a significant role in the development of Canadian regulations

limiting the numbers of sick and diseased puppies entering Canada from

U.S. Class ``A'' and Class ``B'' dealer operations, and has sent the

Department of Agriculture over 75,000 petitions and postcards from our

members requesting prompt action to reduce the abuses prevalent in the

puppy breeding industry.

III. Statement of the Problem

A. Current USDA Regulations Defining ``Retail Pet Store'' as any

``Outlet'' are Overly Broad and Violate Both the Clear Language and the

Spirit of the Animal Welfare Act

When Congress first enacted the Animal Welfare Act in 1966 it was

intended to regulate only those entities that sold animals to

laboratories and to reduce the incidence of pet theft.3 The 1970

amendments expanded the coverage to include dealers of animals sold

``for use as pets . . .'' 4 The Congressional amendment

specifically excluded ``retail pet stores.'' 5 The Department of

Agriculture promulgated regulations interpreting the term ``retail pet

store'' to include any retail ``outlet'' under the 1970

Amendments.6 The arbitrary expansion of the ``retail pet store''

exemption called for in the statute to include any ``outlet'' selling

to the consumer confounds any reasonable definition of ``store'' in the

English language and undermines the clear intent of the statute. This

expanded exclusion allows dozens if not hundreds of dog breeders to

keep animals in inhumane conditions, without adequate veterinary care

and completely protected from public view by simply raising and selling

pets directly to the public.

Investigations have found some of these facilities to be operated

in a manner that allows communicable diseases such as parvo and

distemper to spread, and provides inadequate shelter and unhealthy

sanitary conditions including fetid water, vermin infestation and fecal

material in and around cages.

For example, a ``20/20'' television report highlighted a case in

which a dog purchased from one of these facilities was found to have a

staph infection, cot cicada, diarrhea, skin fungus, pyoderma parasites,

tapeworms, hook worms, whip worms, an eye infection, a weak immune

system and emodectic mange. 7 The facility involved was eventually

prosecuted and closed down by local authorities.

A more recent case involves a breeder in Glendale, West Virginia.

This breeder was given a six-month-old male Shih-Tzu as a co-owner in

January of 1994. When he was returned to the other owners on October

19, 1994 he was emaciated and dehydrated and had severe flea

infections, worms, was extremely matted, and needed stitches to close a

wound. The co-owners had tried to solicit help from the local police to

investigate complaints regarding odors emanating from the yard, but the

police stated that they did not have the authority to act.8 If the

kennel were licensed under the Act, it would be open to inspections and

the kennel would be mandated to correct deficiencies.

The agency's interpretation that the term ``store'' includes all

``outlets'' has allowed these and other equally deficient

establishments to operate unchecked and for the dogs involved to suffer

from inadequate housing, food and veterinary care. A ``store'' simply

cannot be interpreted to encompass operations that breed, raise or sell

puppies from a backyard, living room or barn. Therefore this

interpretation by the agency constitutes an unreasonable and arbitrary

interpretation of the clear and plain meaning of the statute and is

therefore contrary to the law.

The agency may have been influenced in promulgating the regulation

by the legislative history accompanying the 1970 amendments which

states that the bill's purpose is to regulate ``more people who handle

animals. It will, for example, bring into the regulatory framework of

the Act for the first time . . . wholesale pet dealers (emphasis

added).'' 9 This explanation of the expansion of the coverage of

the Act is clearly intended as an overview and not as a limit on the

potential for regulation. The section states that it is intended as an

``example'' of the expansion of coverage and not a description of the

universe of coverage.10 It is reasonable for the author of the

legislative history, in seeking to generally characterize a section

that excludes retail dealers to state that the section includes

wholesale dealers. It is not reasonable, however, for the agency to use

this general description to limit coverage only to those entities

clearly given as ``examples'' of intended coverage under the Act.

While it is true that a dealer operating as a breeder but selling

to the public directly is not a wholesaler, it is also clear that he or

she in most, if not all, cases is not a ``store.'' The Act does not

exclude ``retail outlets'', it does not exclude ``all dealers except

wholesalers.'' It only excludes establishments that are both (1) retail

and (2) stores. Clearly, had Congress intended to limit coverage either

to only include wholesalers or to expand the exclusion of retailers to

all ``outlets,'' it could have done so. It did not.

It is not the intent of the petitioner to seek amendment of the

statute to include the casual breeder who sells directly to the public;

these breeders are excluded from coverage under the Act by the specific

exclusion of individuals who derive no more that $500 gross income from

the sale of animals each year.11 Rather it is the intention of the

petitioner to seek regulations that clearly include individuals making

a substantial income from the sales of dozens of puppies each year for

whom no protection currently exists by selling directly to the ultimate

consumer.

B. The Current Policy of U.S.D.A. To Exclude the Dealers of ``Hunting,

Breeding and Security Dogs'' From the Provisions of the Act Is in

Direct Contravention of the Explicit Language of the Statute

The U.S.D.A. has repeatedly stated its ``policy'' of not regulating

hunting dog dealers under the Animal Welfare Act.12 However, this

policy is in conflict with the clear language of the Animal Welfare Act

and its supporting

[[Page 14046]]

legislative history. Just as the 1970 amendments expanded coverage of

the Act to include animals sold for pets, Congress also intended to

include under this category dogs sold for hunting, security or breeding

purposes.

The Department did not include these animals under the Act's

protection when implementing the 1970 amendments. Therefore, when

Congress revisited the Act in 1976 to expand coverage to the

transportation of animals by air and to ban animal fighting ventures,

it also clarified its intention in the previous bill by including the

following language:

(f) The term ``dealer'' means any person who, in commerce, for

compensation or profit . . . buys or sells . . . (2) any dog for

hunting, security, or breeding purposes . . . 13

(g) The term ``animal'' means any live or dead dog . . . With

respect to a dog the term means all dogs including those used for

hunting, security, or breeding purposes.'' 14

The agency cites two sources for the basis of its exclusion of some

dogs from the provisions of the Act. 15 The first is the

legislative history related to the 1966 bill (referenced in letter as

H.R. 13881). However, the 1966 bill only dealt with the sale of animals

to medical research and not to any facet of the pet industry.

Therefore, this provides no justification for this exclusion. The

second source is the exclusion of ``retail pet store'' from the Act in

the 1970 Amendments. Clearly Congress did not intend to exclude any

retail operation, but rather retail stores. This is evidenced by

Congress' attempts to correct the Department's misinterpretation of the

exclusions under the 1970 amendments. Had Congress agreed with the

agency's interpretation of the Act to expand the term ``store'' to

include an ``outlet'' it would have been silent on the issue in the

1976 Amendments.

With regard to dogs used for hunting, security, or breeding,

Congress made its intent extremely clear in 1976. In the legislative

history related to the 1976 amendments, the House report recognized the

Department's flawed interpretation of the 1970 Amendments which were

intended to cover hunting, security and breeding dogs by stating that

``Contrary to the interpretation presently held by the Secretary of

Agriculture, all dogs, including dogs used for hunting, security or

breeding purposes, do fall within the protection of the Act.'' 16

The Department's later analysis that these dogs are not covered

``since hunting dogs are usually sold at the retail level'' flies in

the face of the express wishes of Congress. Because hunting, security

and breeding dogs are rarely if ever sold at a retail pet store but,

even according to the agency, are sold at the retail level, 17

and, because Congress clearly indicated that the agency's

interpretation that hunting dogs are to be excluded is wrong, the only

logical interpretation of the Act is that ``retail level'' sales are

intended to be included at least as they relate to hunting, security

and breeding dogs. Also, because the exemption relates to dogs sold

``as pets'' and not to dogs used for hunting, breeding or security, it

should have no application to establishments dealing in these

animals.18

Because ``breeding dogs'' are included in Congress' clarification,

and because no Class ``A'' dealer can operate without buying or selling

breeding dogs, all Class ``A'' dealers should be covered under the

provisions of the Act unless they are breeding in a ``retail store.''

IV. Petitioner's Request For Rulemaking

Petitioner requests that USDA change current policies that exclude

dealers handling dogs used for hunting, security, or breeding purposes

from the provisions of the Act and promulgate regulations that would

change the definition of ``retail pet store'' to ``non-residential

business establishment used primarily for the sale of pets to the

ultimate consumer.''

V. The Regulatory Changes Sought Are Supported by the Clear

Language of the Statute

In order to be valid, regulations must be consistent with the

statute under which they are promulgated. United States v. Larinoff,

431 U.S. 864, 873 (1971).19 The starting point for interpreting a

statute is the language of the statute itself and, absent a clearly

expressed legislative intent to the contrary, that language must

ordinarily be regarded as conclusive. Consumer Product Safety Comm. v.

G.T.E. Sylvania, Inc., 447 U.S. 102 (1980).

Furthermore, an agency's interpretation of a statute is not

entitled to deference when it goes beyond the meaning that the statute

can bear. MCI Telecommunications v. American Telephone and Telegraph

Company, 114 S. Ct. 2223, 2231 (1994).

The Animal Welfare Act calls for the exemption of ``retail pet

stores'' from the provisions of the Act. The expansion of this

exclusion to include any ``outlet'' is inconsistent with the plain

language of the statute. Nothing suggests that Congress intended to

limit coverage to wholesalers. Therefore, the exclusion from coverage

for ``retail pet stores'' should be limited to those entities that

clearly fall within this exemption. All other entities, including

retail pet dealers, not operating as stores, should be covered and

regulated.

The policy of the Department to exclude breeders of dogs for

hunting, breeding or security purposes has an even shakier foundation.

The statute expressly calls for the inclusion of these dealers. Yet,

inexplicably, the Department has based its exclusion of these animals

on its own flawed interpretation of the Act to exclude all retail

outlets. In fact, the exclusion of dogs bred for hunting, breeding or

security purposes is not only inconsistent with the statute, it is

contrary to its express language. Dogs bred for hunting, security and

breeding purposes fall within the clearly expressed legislative intent

and therefore should be covered.

VI. The Regulatory Change Sought Would Further the Purpose of the

Act

The purpose of the Animal Welfare Act is to establish humane

treatment of dogs by animal dealers.20 The Act establishes by law

the humane ethic that animals should be accorded the basic creature

comforts of adequate housing, ample food and water, reasonable

handling, decent sanitation, sufficient ventilation, shelter from

extremes of weather and temperature and adequate veterinary

care.21 The inclusion of all dealers who breed dogs, including

those sold for hunting, breeding or security purposes, and with the

limited exception of retail stores, will assure protection under the

Act for more animals, and therefore, will further its purpose.

VII. Conclusion

For the reasons set forth, Petitioner requests that the U.S.D.A.

make the requested changes in its rules and administrative policies.

Respectfully Submitted,

Holly E. Hazard,

Executive Director, Doris Day Animal League.

Appendices

Appendix 1: Letter from Dayne E. Vendal concerning purchase of a dog

Appendix 2: Statement and other documents from Stephen and Peggy

Waltman concerning the care of a dog

Appendix 3: Letter to Holly Hazard, DDAL, from P.L. Allen, APHIS

Appendix 4: Letter to Sara Amundsen, DDAL, from Cheryl A. Oswalt,

APHIS

Appendix 5: Letter to Holly Hazard, DDAL, and William Long, HSUS,

from the law firm of Davis, Graham, and Stubbs

Endnotes

1. 7 U.S.C.A. 2131 et seq.

[[Page 14047]]

2. 9 CFR Sec. 1.1 et seq.

3. 2 U.S. Cong. & Admin. News '66, at 2636.

4. P.L. 91-579.

5. 7 U.S.C.A. 2132(f).

6. 9 CFR at 1.1.

7. See Appendix 1.

8. See Appendix 2.

9. 3 Cong. & Admin. News '70 , at 5104.

10. Id.

11. 7 U.S.C.A. 2132(f)(ii).

12. See letter to Ms. Holly Hazard from P.L. Allen, February 2,

1989 at Appendix 3. See also, letter to Ms. Sara Amundson from

Cheryl Oswalt, October 14, 1992 at Appendix 4.

13. 7 U.S.C.A. 2132(f).

14. 7 U.S.C.A. 2132(g).

15. See letter to Holly Hazard from P.L. Allen, February 2, 1989

at Appendix 3.

16. 2 U.S. Cong. & Admin News '76, at 758-759.

17. See letter to Amundson at Appendix 4.

18. For a further analysis of this argument see letter to Ms.

Holly Hazard and Mr. William Long from Mark D. Colley, Esq., Davis,

Graham & Stubbs, L.L.C., June 9, 1995, at page 3 at Appendix 5 which

is herein incorporated by reference.

19. Id. at page 1-2 at Appendix 5 which is herein incorporated

by reference.

20. 2 U.S. Cong. & Admin. News '66, at 2635.

21. 3 U.S. Cong. & Admin. News '70, at 5104.

[FR Doc. 97-7454 Filed 3-24-97; 8:45 am]

BILLING CODE 3410-34-P