[Federal Register Volume 62, Number 57 (Tuesday, March 25, 1997)]
[Proposed Rules]
[Pages 14044-14047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7454]


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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,<SUP>1 regulations 
under the Act <SUP>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.<SUP>3 The 1970 
amendments expanded the coverage to include dealers of animals sold 
``for use as pets . . .'' <SUP>4 The Congressional amendment 
specifically excluded ``retail pet stores.'' <SUP>5 The Department of 
Agriculture promulgated regulations interpreting the term ``retail pet 
store'' to include any retail ``outlet'' under the 1970 
Amendments.<SUP>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. <SUP>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.<SUP>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).'' <SUP>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.<SUP>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.<SUP>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.<SUP>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 . . . <SUP>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.'' <SUP>14
    The agency cites two sources for the basis of its exclusion of some 
dogs from the provisions of the Act. <SUP>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.'' <SUP>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, <SUP>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.<SUP>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).<SUP>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.<SUP>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.<SUP>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