[Federal Register: March 14, 2003 (Volume 68, Number 50)]
[Rules and Regulations]
[Page 12283-12285]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14mr03-1]
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Rules and Regulations
Federal Register
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[[Page 12283]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 1
[Docket No. 99-087-3]
Licensing and Inspection Requirements for Dealers of Dogs
Intended for Hunting, Breeding, or Security Purposes
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the animal welfare regulations to reflect our
policy of regulating only wholesale dealers, and not retail dealers, of
dogs intended for hunting, breeding, or security purposes. We currently
regulate these wholesale dealers under the same regulations in place
for wholesale dealers of other dogs. This action makes the regulations
consistent with our policy and, therefore, clarifies licensing and
inspection requirements for affected dealers of dogs intended for
hunting, breeding, or security purposes.
EFFECTIVE DATE: April 14, 2003.
FOR FURTHER INFORMATION CONTACT: Dr. Jerry DePoyster, Senior Staff
Veterinarian, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale,
MD 20737-1234; (301) 734-7586.
SUPPLEMENTARY INFORMATION:
Background
The Animal Welfare Act (AWA) (7 U.S.C. 2131 et seq.) authorizes the
Secretary of Agriculture to promulgate standards and other requirements
governing the humane handling, housing, care, treatment, and
transportation of certain animals by dealers, research facilities,
exhibitors, carriers, and intermediate handlers. The Secretary of
Agriculture has delegated the responsibility of enforcing the AWA to
the Administrator of the Animal and Plant Health Inspection Service
(APHIS). The regulations established under the AWA are contained in
title 9 of the Code of Federal Regulations (9 CFR), chapter I,
subchapter A, parts 1, 2, and 3. Part 1 defines various terms used in
parts 2 and 3. Part 2 contains general requirements for regulated
parties, and part 3 contains specific requirements for the care and
handling of certain animals. Subpart A of part 3 contains the
requirements applicable to cats and dogs.
Under section 4 of the AWA (7 U.S.C. 2134), a dealer may not sell
an animal as a pet or for exhibition unless he or she first obtains a
license from the Secretary. Section 4 also requires a dealer to have a
license to buy from or sell to another dealer (i.e., at the wholesale
level). Because dogs sold for hunting, breeding, or security purposes
are not sold to research facilities, or for use as pets or for
exhibition, dealers in these dogs do not need a license to buy or sell
them unless they do so at the wholesale level.
Section 13 of the AWA (7 U.S.C. 2143) directs the Secretary to
promulgate standards of care with which regulated dealers must comply.
Because section 4 of the AWA requires the regulation only of wholesale
dealers of hunting, breeding, and security dogs, retail dealers of such
dogs are not subject to the standards promulgated under section 13 of
the AWA.
In accordance with the AWA, on July 19, 1999, we published in the
Federal Register (64 FR 38546-38548, Docket No. 97-018-4) a decision
and a policy statement that notified the public that, among other
things, we had established a policy to license and inspect wholesale
dealers of dogs intended primarily for hunting, breeding, or security
purposes. This means that we currently regulate these dealers under the
same regulations in place for wholesale dealers of other dogs. We
instituted this policy to help ensure the humane handling, care, and
treatment of hunting, breeding, and security dogs.
Because the regulations at Sec. 2.1 require that all dealers of
dogs must be licensed and inspected, we published in the Federal
Register on December 4, 2000 (65 FR 75635-75637, Docket No. 99-087-1),
a proposal to amend the regulations to reflect the intent of the AWA
and our policy of regulating only wholesale dealers of dogs intended
for hunting, breeding, or security purposes. Specifically, we proposed
to amend the definition of dealer in Sec. 1.1 to make it clear that,
with respect to dealers of hunting, breeding, and security dogs, the
term applies only to wholesale dealers of these dogs.
We solicited comments concerning our proposal for 60 days ending
February 2, 2001. We extended the deadline for comments until April 3,
2001, in a document published in the Federal Register on January 22,
2001 (66 FR 6491-6492, Docket No. 99-087-2). We received 28,485
comments by April 3, 2001, the closing date of the extended comment
period. The comments, which were primarily form letters or variations
of form letters, were from dog breeders, animal welfare advocates (both
individuals and organizations), dog owners and fanciers,
representatives of State and local governments, and members and
representatives of kennel clubs or specific dog breed associations.
These comments are discussed below.
Several thousand commenters suggested that all breeders of dogs
that can be considered hunting, breeding, or security dogs should be
regulated at not only the wholesale level, but at the retail level as
well. Many of these commenters also suggested that our policy and
proposal were contrary to the intent of the AWA.
In response, it is important to note that we proposed this action
in order to bring our regulations into accord with our policy of
regulating only wholesale dealers of dogs intended for hunting,
breeding, or security purposes. Our policy statement, discussed
previously, clarified that we regulate only wholesale dealers of dogs
intended for hunting, breeding, or security purposes. Again, this
continuity-creating action helps ensure the humane handling, care, and
treatment of hunting, breeding, and security dogs.
As described above, the regulations at Sec. 2.1 require that all
dealers of dogs must be licensed and inspected. Currently, then,
because our definition of dealer in Sec. 1.1 can be extended or
interpreted to include both wholesale and retail dealers of hunting,
breeding, and security dogs, our regulations have been inconsistent
with our published policy. As stated previously and in the
[[Page 12284]]
proposed rule, the change will be reflected in the definition of dealer
in Sec. 1.1.
We do not believe that modifying the definition of dealer to
reflect our policy is contrary to the intent of the AWA because the Act
does not make retail dealers of dogs intended for hunting, breeding, or
security purposes subject to Federal licensing and regulation. We
believe it is important to modify the definition of dealer in order to
make explicit the provisions of the Act. It is important to note that
our change is consistent with congressional revisions of the AWA in
which Congress did not alter our definition of retail pet store.
Therefore, we are confident that the proposed rule and this final rule
reflect Congress' original and continuing intent that, with respect to
dealers of hunting, breeding, and security dogs, the definition of
dealer focus solely on dealers who sell on the wholesale level.
We also believe that our implementation of the AWA has
significantly improved the well-being of animals owned by the wholesale
dealers we regulate, as well as that of animals owned by retail
dealers. It is likely that many retail outlets have improved the living
standards of their animals in order to meet the standards of their
wholesale counterparts.
Further, we have determined that retail dealers, especially those
who sell from their homes, are already subject to a degree of self-
regulation and oversight by persons who purchase animals from the
retailers' homes, as well as by breed and registry organizations, which
require their registrants to meet certain guidelines related to the
health and genetic makeup of animals bred and to the education of the
registrants. Typically, wholesale dealers do not have the same amount
of oversight from the public.
Other commenters suggested that unregulated retail dealers of
purebred dogs have no regard for hereditary diseases they propagate.
These commenters indicated that unsuspecting customers who purchase
diseased animals have no means for Federal recourse. Many of these same
commenters noted that retail dealers who are humane would welcome
licensing and inspection requirements.
In response, retail dealers of pets are not unregulated. Many State
and local laws and ordinances are in place to monitor and respond to
allegations of inhumane treatment and inadequate housing for animals
owned by private retail dealers.
Another large group of commenters supported most of the proposal,
but requested that we further modify the definition of ``dealer'' in
Sec. 1.1 to include establishments referred to as ``puppy mills.''
These commenters indicated that retail dealers should remain excluded
from the definition of ``dealer,'' but suggested that we need to
regulate high-volume dealers.
Although there is no standard, fully encompassing definition for
the term ``puppy mill,'' most people use it to refer to high-volume
breeding establishments that sell dogs at the wholesale level and sell
few, if any, dogs directly to the public. Therefore, as wholesale
dealers, the sellers in question are subject to licensing and
inspection requirements.
We are not making any changes to the rule as a result of these
comments because we have determined that this rule will make our
regulations more consistent with our policy to regulate only wholesale
dealers of dogs intended for hunting, breeding, or security purposes,
and will, therefore, clarify licensing and inspection requirements for
affected dealers of these dogs.
We received a total of 1,238 comments expressing support for our
proposal. The vast majority of these comments came from self-identified
hobby breeders who indicated they were registered with kennel clubs or
other breed registry organizations.
Many of these commenters indicated that their breeding dog was a
family pet and their hobby breeding establishment was a home-based
business. Most commenters shared the concern that additional regulation
of retail dealers would require them to become registered dealers and
to adhere to licensing and inspection requirements. Those who expressed
this concern were adamantly opposed to paying licensing fees for their
hobby breeding establishments and having their private homes inspected.
Many suggested that such requirements would be cumbersome, if not
impossible, to enforce.
In response, we are charged with enforcing the provisions of the
AWA which require the regulation only of wholesale dealers of hunting,
breeding, or security dogs.
Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule, without
change.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be not significant for the purposes of Executive
Order 12866 and, therefore, has not been reviewed by the Office of
Management and Budget.
In accordance with 5 U.S.C. 604, we have performed a final
regulatory flexibility analysis, which is set out below, regarding the
economic effects of this rule on small entities.
This final rule amends the regulations to reflect our policy of
regulating only wholesale dealers of dogs intended for hunting,
breeding, or security purposes. As such, this action does not result in
any change to our operations. We currently help ensure the humane
handling, care, and treatment of hunting, breeding, and security dogs
through the licensing and inspection of wholesale dealers of these
dogs; we regulate these dealers under the same regulations in place for
wholesale dealers of other types of dogs.
We have used all available data to estimate the potential economic
effects of changing the definition of dealer in Sec. 1.1 to reflect
our policy of regulating wholesale dealers of hunting, breeding, or
security dogs. However, specific data concerning the number of small
entities that will be affected by this rule is not available. In our
proposed rule, we invited comments. However, none of the comments we
received specifically addressed potential economic effects.
To comply with our current policy and the regulations, wholesale
dealers of dogs intended for hunting, breeding, or security purposes
incur costs for licensing, as well as other expenses. The costs of
licensing for affected dealers include an annual application fee of $10
and an annual class ``A'' license fee based on 50 percent of total
gross sales or compensation from leased animals. License fee amounts
are determined according to ranges shown in Table 1 of 9 CFR part 2,
Sec. 2.6.
Among other costs incurred by wholesale dealers of hunting,
breeding, and security dogs are expenses related to veterinary care,
tagging or tattoo marking for animal identification, recordkeeping,
health certification of dogs commercially transported, and maintenance
of appropriate facilities and operating standards (see 9 CFR part 3,
subpart A). It is reasonable to assume, however, that these
responsibilities are met by affected dealers simply as a matter of good
business practice. When dealers satisfy the facilities and operating
standards of the regulations by, for example, providing a safe and
healthy environment (including appropriate heating, cooling and
ventilation of the dogs' housing to adequate feeding and exercising
programs), those dealers are contributing to their dogs' eventual sale
value. As another example, records of transactions can only further a
wholesale dealer's business success.
[[Page 12285]]
Therefore, it is in a dealer's financial interest to promote the health
and well-being of his or her dogs in accordance with the regulations.
However, if any wholesale dealers of hunting, breeding, or security
dogs were not in compliance with the regulations in 9 CFR parts 2 and 3
prior to our policy announcement on July 19, 1999, they will likely
have incurred expenses related to meeting these requirements. We do not
have information on the number of such dealers or what their expenses
might be.
The purpose of this rule is actually to remove requirements
covering dealers who sell hunting, breeding, or security dogs at the
retail level. Those dealers will experience no economic effects from
this action since we have never enforced those provisions.
The Regulatory Flexibility Act requires that agencies consider the
economic effects of rules on small entities. The Small Business
Administration determines the criteria by which entities are classified
as ``small,'' using the North American Industry Classification System
(NAICS) categories. Wholesale dealers of hunting, breeding, or security
dogs are included within NAICS category 112990, ``All Other Animal
Production.'' Small entities in this category are ones with annual
receipts of $750,000 or less. Although data is not available on the
number of wholesale dealers of hunting, breeding, or security dogs, or
their incomes, we presume the majority are small entities.
While a substantial number of affected dealers may be small
entities, we expect the effect of this rule on these dealers will be
insignificant because licensing and inspection fees will remain the
same. This action simply makes our regulations consistent with our
policy and, therefore, clarifies licensing and inspection requirements
for affected dealers of dogs intended for hunting, breeding, and
security purposes.
This rule contains various recordkeeping requirements, which were
described in our proposed rule, and which have been approved by the
Office of Management and Budget (See ``Paperwork Reduction Act''
below).
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under
No. 10.025 and is subject to Executive Order 12372, which requires
intergovernmental consultation with State and local officials. (See 7
CFR part 3015, subpart V.)
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. It is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule. The Animal Welfare Act does not provide administrative procedures
which must be exhausted prior to a judicial challenge to the provisions
of this rule.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the information collection or recordkeeping requirements
included in this rule have been approved by the Office of Management
and Budget (OMB) under OMB control number 0579-0169.
Government Paperwork Elimination Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the Government Paperwork Elimination Act (GPEA), which
requires Government agencies in general to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible. For information pertinent to GPEA
compliance related to this rule, please contact Mrs. Celeste Sickles,
APHIS' Information Collection Coordinator, at (301) 734-7477.
List of Subjects in 9 CFR Part 1
Animal welfare, Pets, Reporting and recordkeeping requirements,
Research.
Accordingly, we are amending 9 CFR Part 1 as follows:
PART 1--DEFINITION OF TERMS
1. The authority citation of part 1 continues to read as follows:
Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.
2. In Sec. 1.1 the definition for dealer is 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, 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.
* * * * *
Done in Washington, DC, this 10th day of March, 2003.
Peter Fernandez,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-6161 Filed 3-13-03; 8:45 am]
BILLING CODE 3410-34-P