This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

28799 

Vol. 77, No. 95 

Wednesday, May 16, 2012 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Parts 1 and 2 

[Docket No. APHIS–2011–0003] 

RIN 0579–AD57 

Animal Welfare; Retail Pet Stores and 

Licensing Exemptions 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Proposed rule. 

SUMMARY: We are proposing to revise the 

definition of retail pet store and related 

regulations to bring more pet animals 

sold at retail under the protection of the 

Animal Welfare Act (AWA). 

Specifically, we would narrow the 

definition of retail pet store so that it 

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 certain 

animals are sold or offered for sale, at 

retail, for use as pets. Retail pet stores 

are not required to be licensed and 

inspected under the AWA. We are also 

proposing to increase 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 the licensing and inspection 

requirements if he or she sells only the 

offspring of those animals born and 

raised on his or her premises, for pets 

or exhibition. This exemption would 

apply regardless of whether those 

animals are sold at retail or wholesale. 

This proposed rule is necessary to 

ensure that animals sold at retail are 

monitored for their health and humane 

treatment and to concentrate our 

regulatory efforts on those facilities that 

present the greatest risk of 

noncompliance with the regulations. 

DATES: We will consider all comments 

that we receive on or before July 16, 

2012. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov/#!document

Detail;D=APHIS-2011-0003-0001. 

• Postal Mail/Commercial Delivery: 

Send your comment to Docket No. 

APHIS–2011–0003, Regulatory Analysis 

and Development, PPD, APHIS, Station 

3A–03.8, 4700 River Road Unit 118, 

Riverdale, MD 20737–1238. 

Supporting documents and any 

comments we receive on this docket 

may be viewed at http://www.

regulations.gov/#!x0docketDetail;D=

APHIS-2011-0003 or in our reading 

room, which is located in room 1141 of 

the USDA South Building, 14th Street 

and Independence Avenue SW., 

Washington, DC. Normal reading room 

hours are 8 a.m. to 4:30 p.m., Monday 

through Friday, except holidays. To be 

sure someone is there to help you, 

please call (202) 799–7039 before 

coming. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Gerald Rushin, Veterinary Medical 

Officer, Animal Care, APHIS, 4700 River 

Road Unit 84, Riverdale, MD 20737– 

1231; (301) 851–3740. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

I. Purpose of Regulatory Action 

The U.S. Department of Agriculture’s 

(USDA) Animal and Plant Health 

Inspection Service (APHIS) is taking 

this action pursuant to its authority 

under the Animal Welfare Act (AWA or 

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, care, treatment, and 

transportation of certain animals by 

dealers, research facilities, exhibitors, 

operators of auction sales, and carriers 

and intermediate handlers. The 

Secretary has delegated responsibility 

for administering the AWA to the 

Administrator of APHIS. Regulations 

and standards established under the 

AWA are contained in the Code of 

Federal Regulations (CFR) in 9 CFR 

parts 1, 2, and 3. APHIS is undertaking 

this action to ensure that animals sold 

at retail are monitored for their health 

and humane treatment. 

II. Summary of Major Provisions 

‘‘Retail pet stores’’ are not required to 

obtain a license under the AWA or 

comply with the AWA regulations and 

standards. Currently, anyone selling, at 

retail, the following animals for use as 

pets are considered retail pet stores: 

Dogs, cats, rabbits, guinea pigs, 

hamsters, gerbils, rats, mice, gophers, 

chinchilla, domestic ferrets, domestic 

farm animals, birds, and cold-blooded 

species. 

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). 

In addition to retail pet stores, the 

proposed rule would exempt from 

regulation anyone 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. In addition, the proposed 

rule would increase 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 if he or 

she sells only the offspring of those 

animals born and raised on his or her 

premises for use as pets or exhibition, 

regardless of whether those animals are 

sold at retail or wholesale. 

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28800 Federal Register / Vol. 77, No. 95 / Wednesday, May 16, 2012 / Proposed Rules 

III. Costs and Benefits 

The benefits of the rule, primarily 

expected improvements in animal 

welfare, are expected to justify the costs. 

These benefits are not quantified. As 

detailed in the RIA, total costs are 

expected to total from $2.2 million to 

$5.5 million, while total cost savings 

could range from about $45,000 to about 

$150,000 per year. An estimate of the 

primary costs that may be incurred by 

entities in connection with this 

proposed rule is provided below: 

Area of possible 

non-compliance 

Unit cost 1 Number of 

affected facilities 2

Total cost range 

($1,000) 

Licensing fees ............................................. $10 application fee; $30–$750 licensing fee (assume $70 to 

$235) 3.

1,500 $105 $353 

Identification ................................................ $1.12–$2.50 for collars & tags (246 dogs per facility need 

identification) 4.

1,500 413 923 

Recordkeeping ............................................ 10 hrs annually * $13.07/hour (BLS 43–9061) ....................... 1,500 196 196 

Facility Maintenance ................................... 8–10 hrs (preliminary) *; $9.38/hr (BLS 39–2021) ................. 248 19 23 

$50 to $100 (materials) .......................................................... .................... 12 25 

2–8 hrs per week (ongoing) *; $9.38/hr (BLS 39–2021) ........ .................... 242 968 

Veterinary care ........................................... $50 to $150 (site visit) ............................................................ 237 12 36 

$75 to $300 (1 to 3 veterinary care issues) ........................... .................... 18 213 

$16 to $35 for puppy vaccinations ......................................... .................... 531 1,161 

Shelter Construction ................................... $80–$120 for a commercial igloo style dog house (1 to 20 

new shelters).

65 5 156 

Primary Enclosures ..................................... $220–$260 for a commercial 3′ x 6′ kennel (1 to 30 new enclosures).21 5 164 

Daily Sanitation & Cleaning per Year ......... 1–2 hrs daily * $9.38/hr (BLS 39–2021) ................................. 194 664 1,328 

Total ..................................................... ................................................................................................. .................... 2,222 5,545 

1These costs may be overestimated. In general, they do not account for volume discounts, do-it-yourself labor or construction out of inexpensive materials that may be more likely in some cases. 2We estimate that there may be about 1,500 dog breeders that could be affected by this rule. The number of facilities for each area of possible non-compliance is based on 1,500 multiplied by the percentage of wholesale breeders found to be non-compliant for that category in pre-licensing inspections in 2010. 3 In 2010, more than 85 percent of Class A licensees had gross income associated with license fees of between $70 and $235. Therefore, we 

assume that newly regulated entities would fall in this range. 4 In 2010, there were an average of 106 adults and 93 puppies at licensed wholesale breeders at one time. We assume, based on litter sizes, 

frequency of litters, and puppy sales, that there would be about 1.5 times this number of puppies at the average facility over the course of a 

year. 

Background 

Under the Animal Welfare Act (AWA 

or 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, care, treatment, and 

transportation of certain animals by 

dealers, research facilities, exhibitors, 

operators of auction sales, and carriers 

and intermediate handlers. The 

Secretary has delegated responsibility 

for administering the AWA to the 

Administrator of U.S. Department of 

Agriculture’s (USDA) Animal and Plant 

Health Inspection Service (APHIS). 

Within APHIS, the responsibility for 

administering the AWA has been 

delegated to the Deputy Administrator 

for Animal Care. Regulations and 

standards established under the AWA 

are contained in the Code of Federal 

Regulations (CFR) in 9 CFR parts 1, 2, 

and 3 (referred to below as the 

regulations). Part 1 contains definitions 

for terms used in parts 2 and 3; part 2 

provides administrative requirements 

and sets forth institutional 

responsibilities for regulated parties; 

and part 3 contains specifications for 

the humane handling, care, treatment, 

and transportation of animals covered 

by the AWA. 

The AWA seeks to ensure the humane 

handling, care, treatment, and 

transportation of certain animals that 

are sold at wholesale and retail for use 

in research facilities, for exhibition 

purposes, or for use as pets. Dealers of 

animals must obtain licenses, they must 

comply with the AWA regulations and 

standards, and their facilities may be 

inspected for compliance. The Act 

defines the term dealer to exclude ‘‘a 

retail pet store except such store which 

sells any animals to a research facility, 

an exhibitor, or a dealer.’’ However, the 

Act does not define the term ‘‘retail pet 

store.’’ 

Pursuant to its rulemaking authority, 

the USDA amended the AWA 

regulations in 1971 by adding a 

definition of retail pet store. A retail pet 

store is defined in § 1.1 of the 

regulations to mean ‘‘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 cold-blooded 

species.’’ The definition of retail pet 

store goes on to describe certain 

establishments that do not qualify as 

retail pet stores, even if they sell 

animals at retail. Those establishments 

that do not qualify as retail pet stores 

are: 

• Establishments or persons who deal 

in dogs used for hunting, security, or 

breeding purposes; 

• 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.; 

• Establishments or persons selling 

warmblooded animals (except birds, 

and laboratory rats and mice) for 

research or exhibition purposes; 

• Establishments wholesaling any 

animals (except birds, rats, and mice); 

and 

• Establishments 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. 

In accordance with the AWA, retail 

pet stores are exempt from the licensing 

requirements in § 2.1(a)(3) of the 

regulations. Other retail and wholesale 

dealers must be licensed, unless 

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Federal Register / Vol. 77, No. 95 / Wednesday, May 16, 2012 / Proposed Rules 28801 

1USDA, Office of Inspector General, ‘‘Animal and 

Plant Health Inspection Service, Animal Care 

Program, Inspections of Problematic Dealers’’ 

(Report No: 33002–4–SF, Issued May 2010), p. 37. 

2See, for example, H.R. 835/S. 707, the Puppy 

Uniform Protection and Safety (PUPS) Act, http:// 

thomas.loc.gov/cgi-bin/bdquery/z?d112:h.r.835. 

otherwise exempt under the regulations. 

The exemptions most relevant to this 

proposed rule are discussed in greater 

detail later in this document. 

The current definition of the term 

retail pet store was established over 40 

years ago to ensure that the appropriate 

retail facilities were exempt from the 

licensing requirements. At that time, 

such outlets were primarily hobby 

breeders, whose small facilities usually 

pose less risk to the welfare of animals 

than do large facilities, and traditional 

‘‘brick and mortar’’ stores that were 

subject to a degree of oversight by 

persons who physically entered their 

place of business to personally observe 

the animals offered for sale prior to 

purchase and/or to take custody of the 

animals after purchase. In this way, 

animals sold by such traditional retail 

pet stores can be monitored by the 

public for their health and humane 

treatment. However, with the increased 

use of the Internet in the 1990s, many 

retailers began to offer their animals for 

sale remotely over the Internet and to 

sell and transport their animals 

nationwide. As a result, today’s 

customers are often unable to enter the 

retailer’s place of business to observe 

the animals before taking them home. 

Because the current definition of retail 

pet store includes all retail outlets, with 

the limited exceptions discussed above, 

retailers selling animals by any means, 

including remote sales conducted over 

the Internet or by mail, telephone, or 

any other means where the customers 

do not physically enter a physical 

premises, qualify as retail pet stores and 

are exempt from the licensing 

requirements, even if they lack the 

public oversight provided by customers 

entering their place of business. 

Without that public oversight or 

licensing and inspections by APHIS, 

there is no assurance that animals sold 

at retail for use as pets are monitored for 

their health and humane treatment 

nationwide. In fact, in recent years, 

APHIS has noted a number of reports 

and complaints concerning the welfare 

of such animals. During a program audit 

that was completed in 2010, the USDA’s 

Office of Inspector General found that 

some consumers who purchased dogs 

over the Internet had encountered 

health problems with their dogs.1 The 

report did not discuss whether animals 

purchased over the Internet suffer from 

health problems at a greater rate than 

those sold in traditional, brick-andmortar retail pet stores. In addition, 

APHIS has received complaints directly 

from members of the public concerning 

the welfare of dogs and other pet 

animals sold at retail. Members of 

Congress have also introduced 

legislation intended to address the issue 

of dogs raised by high-volume breeders 

that sell directly to the public, including 

sales over the Internet.2

To address these issues and ensure 

that animals sold at retail for use as pets 

are monitored for their health and 

humane treatment, we are proposing to 

revise the definition of retail pet store in 

order to bring more pet animal retailers 

under the AWA licensing requirements. 

Specifically, we are proposing to amend 

the definition of retail pet store to limit 

the applicability of the term to only 

those places of business or residences 

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. Because animals sold by such 

stores can be monitored by the buyers 

for their health and humane treatment, 

we have determined that the risk to the 

welfare of animals posed by these stores 

does not warrant our inspection or 

require the issuance of a license. 

We are also proposing that the revised 

definition of retail pet store include any 

person who meets the criteria in 

§ 2.1(a)(3)(iii) of the regulations. That 

paragraph currently provides an 

exemption from licensing requirements 

for persons who maintain a total of three 

or fewer breeding female dogs, cats, 

and/or small exotic or wild mammals 

and who sell 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. This licensing exemption 

does not include: (1) 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, (2) 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, or (3) 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. 

In addition to adding persons meeting 

the criteria in § 2.1(a)(3)(iii) to the 

definition of retail pet store, we are also 

proposing to increase the number of 

breeding females found in that 

exemption from three to four. That 

proposed change is discussed in the 

next section. 

Licensing Exemptions 

The current licensing exemption for 

retail pet stores is found in two 

paragraphs in § 2.1 of the regulations: 

• Paragraph (a)(3)(i) exempts from 

licensing ‘‘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;’’ and 

• Paragraph (a)(3)(vii) exempts from 

licensing ‘‘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.’’ 

We are proposing to simplify the 

exemption presented in paragraph 

(a)(3)(i) so that it states simply that 

‘‘retail pet stores as defined in part 1 of 

this subchapter’’ are exempt from the 

licensing requirements. The definition 

of retail pet store already lists the types 

of animals sold at such stores and 

excludes persons who sell animals at 

wholesale, who sell warmblooded 

animals for research or exhibition, and 

who sell wild, exotic, or nonpet animals 

from the scope of the definition, so the 

exemption and exclusions detailed in 

that paragraph are unnecessary. This 

change would also ensure that the 

licensing exemption for retail pet stores 

is consistent with our proposed 

definition. Similarly, we are proposing 

to remove paragraph (a)(3)(vii) in its 

entirety. Retaining the exemption for the 

entities addressed under that 

paragraph—essentially all retail 

breeders—would be inconsistent with 

our proposed definition of retail pet 

store. 

In addition to these proposed changes 

to the licensing exemptions for retail pet 

stores, we would also revise the 

licensing exemption in § 2.1(a)(3)(ii) of 

the regulations. Paragraph (a)(3)(ii) 

exempts from licensing ‘‘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 

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28802 Federal Register / Vol. 77, No. 95 / Wednesday, May 16, 2012 / Proposed Rules 

and is not otherwise required to obtain 

a license.’’ While this exemption is 

based on a similar provision found in 

the definition of dealer in the AWA and 

§ 1.1 of the regulations, it differs from 

that provision by limiting the source of 

gross income to sales to research 

facilities, exhibitors, dealers, and pet 

stores only. We believe that this 

exemption should apply to all animals. 

Therefore, we are proposing to remove 

the limitation concerning the source of 

gross income in § 2.1(a)(3)(ii) of the 

regulations. 

Finally, as noted previously, we are 

proposing to amend § 2.1(a)(3)(iii) to 

increase 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. In 

proposing to increase this number, we 

are taking into account the fact that 

some dealers who currently qualify as 

retail pet stores would no longer be 

exempt from licensing and inspection 

requirements as a result of our proposed 

change to the definition of retail pet 

store. By increasing the number of 

breeding females, some dealers with 

small facilities who would not 

otherwise qualify as retail pet stores 

under the revised definition of that term 

would continue to be exempt from 

licensing and inspection requirements 

and some pet wholesalers with small 

facilities who are currently required to 

be licensed would no longer have to be 

licensed. Based on a recent review of 

compliance among currently regulated 

facilities, we believe that a facility that 

maintains four breeding females, one 

more than the current limit of three, can 

be considered a low-risk facility, so this 

proposed change would allow us to 

continue to concentrate our regulatory 

resources on those facilities that present 

the greatest risk of noncompliance and 

thereby ensure the welfare of animals. 

Other Changes 

Currently, the definition of dealer in 

§ 1.1 of the regulations states that this 

term does not include ‘‘retail pet stores 

as defined in this section, unless such 

store sells any animal to a research 

facility, an exhibitor, or a dealer 

(wholesale)’’. The phrase ‘‘unless such 

store sells any animal to a research 

facility, an exhibitor, or a dealer 

(wholesale)’’ is redundant given the 

exclusions contained in the definition of 

retail pet store. We are proposing to 

revise the definition of dealer by 

removing this phrase in order to 

eliminate this redundancy. 

Alternatives Considered 

APHIS believes that compliance with 

the requirements of the AWA is 

important for these potentially affected 

entities for the reasons discussed above, 

but should not be regarded as 

unreasonably onerous. Entities subject 

to the AWA must purchase a license, 

which ranges in cost from $40–$760, 

depending on the size of the 

establishment. Further, breeders who 

sell animals over the Internet will be 

subject to the other provisions of the 

AWA, including identification of 

animals, recordkeeping, facility 

maintenance, periodic vet care, shelter 

construction standards, and sanitation 

requirements. APHIS believes that these 

requirements are not excessively 

burdensome, but we also recognize that 

many of the regulated entities are likely 

to be small businesses. 

Consistent with Executive Orders 

12866 and 13563, which emphasize 

determining the least costly regulatory 

option, and with the President’s January 

12, 2011, Memorandum on Small 

Businesses and Job Creation, APHIS has 

considered several alternatives to this 

proposed action. For the reasons 

discussed below, we believe the changes 

proposed in this document represented 

the best alternative option that would 

satisfactorily accomplish the stated 

objectives and minimize impacts on 

small entities. However, we welcome 

comments from the public on these and 

other alternative options. 

As written, some dealers would no 

longer qualify as retail pet stores under 

our proposed definition if they sold 

covered animals at retail to a buyer who 

did not physically enter the seller’s 

place of business or residence, unless 

the dealer is otherwise exempted under 

the regulations. This would mean that if 

a person sold some pets to walk-in 

customers from a physical storefront 

and some pets via remote sales, 

including over the Internet or by mail, 

telephone, or other non-face-to-face 

means, then that person would be 

considered a dealer under the AWA and 

subject to regulation under the Act 

unless otherwise exempted under the 

regulations. 

We recognize that retailers who sell 

some animals to walk-in customers and 

some animals remotely may be subject 

to a certain degree of oversight by the 

customers who enter their place of 

business or residence. As a result, we 

considered establishing a regulatory 

threshold based on the percentage of 

such a retailer’s remote sales. However, 

we did not include this alternative in 

our proposed changes for two reasons. 

First, we do not have the authority to 

require that retail pet stores make and 

retain sales records under the AWA, 

which are necessary to verify the retailer 

is operating within the established 

threshold, whatever that percentage 

might be. Second, it would also be 

difficult to confirm that all the animals 

that the entity sells at retail were 

available to be observed by its walk-in 

customers. If the animals sold to walkins were kept in one location or part of 

a location where they could be seen by 

the public and the animals sold 

remotely were kept at another location, 

then those latter animals would not 

receive the public oversight that forms 

the basis for the retail pet store 

exemption. For these reasons, we do not 

believe that it is possible to craft a 

threshold based on a percentage of a 

retailer’s remote sales that, if met, 

would enable a hybrid operation such as 

we have described to continue to be 

considered a retail pet store and thus 

remain exempt from the licensing and 

requirements under the Act. We are, 

however, interested in receiving 

comments from the public on this 

alternative. Are there currently retailers 

who sell some animals from a storefront 

and some animals remotely and, if so, 

are there specific ways that they do 

business that provide assurance that all 

the covered animals they sell at retail 

are subject to public oversight? Are 

there alternatives to verifying 

compliance that we may not have 

considered? We welcome comments 

from the public on these questions. 

A second alternative we considered in 

preparing this proposed rule was to add 

an exception from licensing for retailers 

that are subject to oversight by State or 

local agencies or by breed and registry 

organizations that enforce standards of 

welfare comparable to those standards 

established under the AWA. To our 

knowledge, 27 States and the District of 

Columbia have enacted laws that 

establish some form of humane welfare 

standards for animals kept at pet stores 

and sold at retail. While the State laws 

concerning the welfare of animals in 

retail pet stores vary by State, few States 

actually address all categories of welfare 

required under the AWA, including 

veterinary care, food and water, proper 

sanitation, and housing. Similarly, few 

breed and registry organizations have 

welfare standards that they require their 

members to meet that are comparable to 

those required under the AWA, and few 

of those organizations conduct regular, 

unannounced inspections or have an 

adequately sized inspectorate to 

evaluate compliance with such welfare 

standards. However, APHIS is 

continuing to look for ways to better 

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3http://www.akc.org/enewsletter/akc_breeder/ 

2009/fall/handbook.cfm. 

collaborate with its State counterparts 

and other organizations. For example, 

APHIS works with State or local 

authorities in jurisdictions that have 

laws regarding animal cruelty. We are 

also working in collaboration with State 

regulatory groups to develop better 

educational tools and requirements for 

licensure under the AWA. With these 

considerations in mind, APHIS 

concluded that it would be premature to 

consider establishing an exemption 

from the licensing requirements for 

retailers that are subject to oversight by 

State or local agencies or breed and 

registry organizations. We certainly 

wish to avoid imposing duplicative 

regulatory requirements on 

establishments where the welfare of the 

animals is being assured through 

alternative means, so we welcome 

information or comments from the 

public regarding the idea of an 

exemption based on oversight from 

other agencies or organizations. We 

request comment on whether any State 

or local laws establish standards that 

would assure the humane handling, 

care, treatment, and transportation of 

animals sold remotely, such as over the 

Internet. We also request comment on 

whether any private organizations have 

certification programs that verify 

compliance with animal welfare 

standards comparable to those 

promulgated under the AWA. Finally, 

we request comment on the 

appropriateness of APHIS providing an 

exemption for entities that are so 

regulated at the State or local level, or 

who are otherwise certified. 

A third alternative we considered 

during the development of this 

proposed rule was to amend the 

definition of retail pet store so that only 

high-volume breeders would be subject 

to the AWA regulations and standards. 

While an objective standard for what 

constitutes a high-volume breeder has 

not been established, we note that the 

PUPS Act legislation referenced in 

footnote 2 would amend the AWA to 

define a ‘‘high volume retail breeder’’ as 

a person who, in commerce, for 

compensation or profit: (1) Has an 

ownership interest in or custody of one 

or more breeding female dogs; and (2) 

sells or offers for sale, via any means of 

conveyance (including the Internet, 

telephone, or newspaper), more than 50 

of the offspring of such dogs for use as 

pets in any 1-year period. 

To compare our proposed exemption 

for persons who maintain four or fewer 

breeding females to the standard of 50 

dogs sold that is provided in the PUPS 

Act, we note that the number of puppies 

that could be produced by 3 breeding 

female dogs is going to vary according 

to the breed of the dog. For example, as 

noted in the Fall 2009 edition of the 

AKC Breeder,3 Labrador retrievers had a 

typical range of 5 to 10 puppies per 

litter, with an average of 7.6, while 

Yorkshire terriers showed a range of 2 

to 5 pups, with an average of 3.3. The 

number of litters per year varies as well, 

but we are aware of estimates of an 

average of 1.5 litters per dog per year. 

With that, 3 Yorkshire terriers could 

produce as many as 22 puppies in a 

year, while 3 Labrador retrievers might 

produce as many as 45 puppies over the 

same period. Adding a fourth breeding 

female as proposed above would bring 

that average to 30 to 60 puppies in a 

year, which is a figure that brings our 

exemption into closer alignment with 

the standard of 50 dogs sold per year 

provided in the PUPS Act. We welcome 

comments regarding the variability of 

litter size by breed and the impact that 

variability may have on the setting of 

size thresholds for the types of entities 

discussed in this proposed rule. 

We have elected in this proposed rule 

to retain an exemption based on the 

number of breeding females, and not to 

propose a different exemption based on 

the number of animals sold in a given 

period, largely because of enforceability 

concerns. When an inspector visits a 

facility under the current regulations, he 

or she can quickly ascertain, through 

direct observation and discussion with 

the operator of that facility, if the 

number of breeding female animals that 

are present falls within the exemption. 

In contrast, if there were an exemption 

based on the number of animals sold in 

a given period, it would be necessary for 

the inspector to review sales records 

and/or other documentation, which 

could create compliance burdens, 

especially for smaller facilities. 

Moreover, though, as noted above, we 

do not have the authority to require 

retail pet stores to make or retain the 

records that would be necessary to 

verify the number of animals sold. We 

encourage the submission of comments 

on this topic, however, and will 

consider all suggestions regarding 

exemptions based on number of 

breeding females, number of animals 

sold, or alternative numerical or other 

thresholds that we may not have 

considered. 

Finally, we note that the exemption in 

§ 2.1(a)(3)(iii) applies to persons who 

maintain breeding female dogs, cats, 

and/or small exotic or wild mammals 

and who sell 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. Given that our proposed 

change in the number of breeding 

females was motivated by primarily 

dog-specific considerations, we 

contemplated a fourth alternative, 

which was to propose to increase the 

number of breeding females for dogs 

only and to leave the threshold for cats 

and small exotic or wild mammals at 

three breeding females. We ultimately 

decided that as a matter of fairness and 

consistency, the increase in the number 

of breeding females should be applied to 

all three categories of animals covered 

by the exemption. We welcome 

comment on this alternative. 

Executive Orders 12866 and 13563 and 

Regulatory Flexibility Act 

This proposed rule has been 

determined to be significant for the 

purposes of Executive Order 12866 and, 

therefore, has been reviewed by the 

Office of Management and Budget. 

We have prepared an economic 

analysis for this rule. The economic 

analysis provides a cost-benefit analysis, 

as required by Executive Orders 12866 

and 13563, and an initial regulatory 

flexibility analysis that examines the 

potential economic effects of this 

proposed rule on small entities, as 

required by the Regulatory Flexibility 

Act. The economic analysis is 

summarized below. Copies of the full 

analysis are available by contacting the 

person listed under FOR FURTHER

INFORMATION CONTACT or on the 

Regulations.gov Web site (see 

ADDRESSES above for instructions for 

accessing Regulations.gov). 

Should this proposed rule be adopted, 

persons who sell covered animals to any 

buyer who does not enter their facility 

to observe the animals prior to purchase 

and/or to take custody of the animals 

after purchase, such as remote sales 

conducted over the Internet where the 

customer does not enter a storefront at 

any point in time, would need to obtain 

a license in accordance with AWA 

regulations. APHIS expects that this rule 

would primarily affect dog breeders that 

maintain more than four breeding 

females at their facilities. While the 

scope of this rule applies to certain 

other animals, as a practical matter, 

most of retailers of animals other than 

dogs would meet the proposed 

definition of retail pet store and 

continue to be exempt from regulation. 

APHIS estimates that there may be 

around 1,500 dog breeders who are not 

currently subject to the AWA 

regulations but would be required to be 

licensed as a result of this proposed 

rule. We base this estimate on the ratio 

of the number of wholesale breeders 

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28804 Federal Register / Vol. 77, No. 95 / Wednesday, May 16, 2012 / Proposed Rules 

regulated by USDA in Iowa, Kansas, and 

Missouri to the number of retail 

breeders currently regulated by these 

three States and that are likely to have 

more than four breeding females. 

Assuming this ratio between the 

numbers of wholesale and retail 

breeders in the three States is similar to 

that for the United States as a whole, we 

extrapolate that there are about 1,500 

U.S. retail breeders who would be 

newly subject to regulation. This figure 

is likely overly inclusive, as it assumes 

that all retail breeders, except for 

traditional retail pet stores and hobby 

breeders, would be regulated. However, 

those retailers for which each buyer 

visits their place of business prior to 

purchase or taking custody would 

continue to be exempt from regulation. 

In addition to obtaining a license, 

regulated entities must comply with 

animal identification and recordkeeping 

requirements. Licensed entities are also 

subject to standards that address the 

following: 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). 

Some affected entities may need to 

make infrastructural and/or operational 

changes in order to comply with the 

standards. Based on our experience with 

regulating wholesale breeders, the most 

common areas of regulatory 

noncompliance at prelicensing 

inspections are veterinary care, facility 

maintenance and construction, shelter 

construction, primary enclosure 

minimum space requirements, and 

cleaning and sanitation. Assuming 

patterns of noncompliance by retail 

breeders newly regulated as a result of 

the proposed changes would be similar 

to those observed in prelicensing 

inspection of wholesale breeders, we 

estimate that the total cost attributable 

to the proposed rule may range from 

$2.2 million to $5.5 million. The 

majority of businesses that would be 

affected are likely to be small entities. 

Expanding the licensing exemption 

from three or fewer breeding females to 

four or fewer breeding females could 

substantially reduce the number of Class 

A licensees (breeders). APHIS 

inspection data suggest that the number 

of current Class A licensees, 2,064, 

could be reduced by about 638 facilities 

(31 percent) due to this increase in the 

exemption threshold. Licensing fees 

range from $40 to $760 annually, 

depending on a facility’s yearly income 

from the sale of regulated animals. In 

2010, more than 85 percent of Class A 

licensees had gross income associated 

with license fees of between $70 and 

$235. Assuming that the entities no 

longer required to be licensed fall in this 

range, total cost savings by these entities 

could range from about $45,000 to about 

$150,000 per year. 

We believe that the benefits of this 

rule, primarily enhanced animal 

welfare, would justify the costs. The 

rule would help ensure that animals 

sold at retail, but lacking public 

oversight receive humane handling, care 

and treatment in keeping with the 

requirements of the AWA. It would also 

address the competitive disadvantage of 

retail breeders who adhere to the AWA 

regulations, when compared to those 

retailers who do not operate their 

facilities according to AWA standards 

and may therefore bear lower costs. 

These benefits are not quantified. 

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 proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. It is not intended to 

have retroactive effect. The Act does not 

provide administrative procedures 

which must be exhausted prior to a 

judicial challenge to the provisions of 

this rule. 

Executive Order 13175 

This proposed rule has been reviewed 

in accordance with the requirements of 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments. The review reveals that 

this regulation will not have substantial 

and direct effects on Tribal governments 

and will not have significant Tribal 

implications. 

Paperwork Reduction Act 

In accordance with section 3507(d) of 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.), the information 

collection or recordkeeping 

requirements included in this proposed 

rule have been submitted for approval to 

the Office of Management and Budget 

(OMB). Please send written comments 

to the Office of Information and 

Regulatory Affairs, OMB, Attention: 

Desk Officer for APHIS, Washington, DC 

20503. Please state that your comments 

refer to Docket No. APHIS–2011–0003. 

Please send a copy of your comments to: 

(1) APHIS, using one of the methods 

described under ADDRESSES at the 

beginning of this document, and (2) 

Clearance Officer, OCIO, USDA, room 

404–W, 14th Street and Independence 

Avenue SW., Washington, DC 20250. A 

comment to OMB is best assured of 

having its full effect if OMB receives it 

within 30 days of publication of this 

proposed rule. 

This proposed rule would revise the 

definition of retail pet store and related 

regulations to bring more pet animals 

sold at retail under the protection of the 

AWA. Specifically, we would narrow 

the definition of retail pet store so that 

it 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 certain 

animals are sold or offered for sale, at 

retail, for use as pets. We are also 

proposing to increase 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, regardless if those 

animals are sold at retail or wholesale. 

This proposed rule is necessary to 

ensure that animals sold at retail are 

monitored for their health and humane 

treatment and to concentrate our 

regulatory efforts on those facilities that 

present the greatest risk of 

noncompliance with the regulations. 

We are soliciting comments from the 

public (as well as affected agencies) 

concerning our proposed information 

collection and recordkeeping 

requirements. These comments will 

help us: 

(1) Evaluate whether the proposed 

information collection is necessary for 

the proper performance of our agency’s 

functions, including whether the 

information will have practical utility; 

(2) Evaluate the accuracy of our 

estimate of the burden of the proposed 

information collection, including the 

validity of the methodology and 

assumptions used; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

information collection on those who are 

to respond (such as through the use of 

appropriate automated, electronic, 

mechanical, or other technological 

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Federal Register / Vol. 77, No. 95 / Wednesday, May 16, 2012 / Proposed Rules 28805 

collection techniques or other forms of 

information technology; e.g., permitting 

electronic submission of responses). 

Estimate of burden: Public reporting 

burden for this collection of information 

is estimated to average 0.355921499 

hours per response. 

Respondents: Retailers and 

wholesalers of pet animals. 

Estimated annual number of 

respondents: 1,500. 

Estimated annual number of 

responses per respondent: 28.50066667. 

Estimated annual number of 

responses: 42,751. 

Estimated total annual burden on 

respondents: 15,216 hours. (Due to 

averaging, the total annual burden hours 

may not equal the product of the annual 

number of responses multiplied by the 

reporting burden per response.) 

Copies of this information collection 

can be obtained from Mrs. Celeste 

Sickles, APHIS’ Information Collection 

Coordinator, at (301) 851–2908. 

List of Subjects in 9 CFR Parts 1 and 2 

Animal welfare, Pets, Reporting and 

recordkeeping requirements, Research. 

Accordingly, we propose to amend 

9 CFR parts 1 and 2 as follows: 

PART 1—DEFINITION OF TERMS 

1. The authority citation for 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 § 1.1, the definition of dealer and 

the introductory text of the definition of 

retail pet store are revised to read as 

follows: 

§ 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 

§ 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). 

§ 2.1 Requirements and application. 

* * * * * 

(a) * * * 

(3) * * * 

(i) Retail pet stores as defined in part 

1 of this subchapter; 

* * * * * 

Done in Washington, DC, this 10th day of 

May 2012. 

Edward Avalos, 

Under Secretary for Marketing and Regulatory 

Programs. 

[FR Doc. 2012–11839 Filed 5–15–12; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF ENERGY 

10 CFR Parts 429 and 430 

[Docket No. EERE–2008–BT–TP–0011] 

RIN 1904–AB78 

Energy Conservation Program: Test 

Procedures for Microwave Ovens 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Supplemental notice of 

proposed rulemaking. 

SUMMARY: On November 23, 2011, the 

U.S. Department of Energy (DOE) issued 

a supplemental notice of proposed 

rulemaking (SNOPR) to amend the test 

procedures for microwave ovens. That 

SNOPR proposed amendments to the 

DOE test procedure to incorporate 

provisions from the International 

Electrotechnical Commission (IEC) 

Standard 62301, ‘‘Household electrical 

appliances—Measurement of standby 

power,’’ Edition 2.0 2011–01 (IEC 

Standard 62301 (Second Edition)). 

Today’s SNOPR proposes additional 

provisions for measuring the standby 

mode and off mode energy use of 

products that combine a microwave 

oven with other appliance functionality, 

as well as minor technical clarifications. 

DATES: DOE will accept comments, data, 

and information regarding this SNOPR 

submitted no later than June 15, 2012. 

See section V, ‘‘Public Participation,’’ 

for details. 

ADDRESSES: Any comments submitted 

must identify the SNOPR on Test 

Procedures for Microwave Ovens, and 

provide docket number EERE–2008– 

BT–TP–0011 and/or regulatory 

information number (RIN) 1904–AB78. 

Comments may be submitted using any 

of the following methods: 

1. Federal eRulemaking Portal: 

www.regulations.gov. Follow the 

instructions for submitting comments. 

2. Email: MicroOven-2008-TP0011@ee.doe.gov. Include docket 

number EERE–2008–BT–TP–0011 and/ 

or RIN 1904–AB78 in the subject line of 

the message. 

3. Mail: Ms. Brenda Edwards, U.S. 

Department of Energy, Building 

Technologies Program, Mailstop EE–2J, 

1000 Independence Avenue SW., 

Washington, DC 20585–0121. If 

possible, please submit all items on a 

compact disc (CD), in which case it is 

not necessary to include printed copies. 

4. Hand Delivery/Courier: Ms. Brenda 

Edwards, U.S. Department of Energy, 

Building Technologies Program, 6th 

Floor, 950 L’Enfant Plaza SW., 

Washington, DC 20024. Telephone: 

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