APHIS Final Rule, June 2018, De Minimis Activity: Revised Licensing Exemption Comparisons, Subpart A – Licensing §2.1(3)(iii) and (vii)

Supplementing our June 15, 2018 post that detailed recent revisions to three key definitions in the Animal Welfare Regulations, this post provides a comparison of changes to two key exemptions to reflect the new agency analysis of the amendment to Animal Welfare Act in the 2014 Farm Bill. Linked here is a comparison table with two columns. On the left side is the prior version with strike-through formatting of deleted language; on the right side is the revised version with underscored new language.

De minimis Exemption Revisions Language Comparisons  (PDF)

NEW 7/21/18      De Minimis Activity Revised Definition Comparisons   (PDF)

While the specific terms, “dogs” and “cats” in exemption (iii) and “dog or cat fanciers” in (vii) have been removed, licensing considerations remain the same as in effect since late 2013 for dog and cat breeders but are only covered under exemption (iii) as now called “hobby dealers” by APHIS while exemption (vii) describes “hobby exhibitors.” For more information on APHIS’s new terminology, see their new publication, “Licensing and Registration Under the Animal Welfare Act Guidelines for Dealers, Exhibitors, Transporters, and Researchers” (URL modified by APHIS, 8/10/18) published on May 25, 2018 in anticipation of publication of the new Final Rule.

Remember that “retail pet stores” are expressly excluded from licensing under the statute, AWA, and are defined in the definitions in Part 1 of the Animal Welfare Regulations and not in the exemptions but simply stated in § 2.1(a)(3) “(i) Retail pet stores as defined in part 1 of this subchapter;” with the details incorporated by reference so that the current exemption authorized by the retail pet store exclusion covers the exclusive face-to-face sales issue, so that dog or cat breeders who do not qualify for the hobby dealer (iii) exemption may still qualify for exemption from dealer licensing by restricting all sales to face-to-face under exemption (i.)

 

 

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APHIS Final Rule, June 2018, De Minimis Activity: Revised Definition Comparisons

As noted in the June 4 post, the new APHIS De Minimis Rule revised three definitions from the Animal Welfare Act’s regulations to reflect the new analysis of the amendment to AWA in the 2014 Farm Bill.  The chart below compares the revisions to definitions of Dealer, Exhibitor and Retail pet store, strike-through of deletions, underscore of additions. The APHIS analysis presumes that an activity determined to be “de minimis” presents a sufficiently low risk to covered animals that it can be safely exempted from licensing so that limited Agency resources focus on higher risk activities.

NEW 7/21/18  Final Rule June 2018 – revised definitions chart (PDF)

ANIMAL WELFARE REGULATIONS, PART 1 – DEFINITION OF TERMS, Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7 – § 1.1 – Definitions.

Comparison - Final Rule Dealer Jun 2018

 

 

 

 

 

Comparison - Final Rule Exhibitor - June 2018

Comparison - Final Rule Retail Pet Store - Jun 2018

 

 

 

 

 

 

 

 

 

 

 

APHIS NEW FINAL RULE: Thresholds for De Minimis Activity and Exemptions From Licensing Under the Animal Welfare Act, Effective June 4, 2018

On December 24, 2016, we published an analysis of the rulemaking notice for this Docket and have now updated that entry with some comments about the Final Rule.

The Final Rule details each revision to the original proposed changes as well as commenter’s concerns for which no change was made. While it is important to carefully study the Final Rule, these are the important things to know. There are now specific licensing exemptions for those with qualifying facts involving small exotic or wild mammals and/or domesticated farm-type animals.

In making these revisions, APHIS made minor changes to three (3) important definitions in the regulations, i.e. changes in language that are now in effect but may not be reflected in versions of the Code of Regulations for some time. These are “Dealer,” “Exhibitor” and “Retail pet store.” Should the need arise to quote or otherwise reference the Animal Welfare Act regulations, the revised definitions should be referenced and cited accordingly. For convenience, these revisions follow:

Part 1 Definition of Terms

Regulatory Text

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. Section 1.1 is amended by revising the definitions of Dealer, Exhibitor, and Retail pet store 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 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; and any retail outlet where dogs are sold for hunting, breeding, or security purposes.

* * * * *

Exhibitor means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary. This term includes carnivals, circuses, animal acts, zoos, and educational exhibits, exhibiting such animals whether operated for profit or not. This term excludes retail pet stores, horse and dog races, an owner of a common, domesticated household pet who derives less than a substantial portion of income from a nonprimary source (as determined by the Secretary) for exhibiting an animal that exclusively resides at the residence of the pet owner, organizations sponsoring and all persons participating in State and country fairs, livestock shows, rodeos, field trials, coursing events, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary.

* * * * *

Retail pet store means a place of business or residence at which the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal 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, chinchillas, domesticated ferrets, domesticated farm-type animals, birds, and coldblooded species. Such definition excludes—

(1) Establishments or persons who deal in dogs used for hunting, security, or breeding purposes;

(2) 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.;

(3) Any establishment or person selling warmblooded animals (except birds, and laboratory rats and mice) for research or exhibition purposes;

(4) Any establishment wholesaling any animals (except birds, rats, and mice); and

(5) Any establishment 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.

The Animal Welfare Act and Rescue: Protecting Dogs “In Commerce”

During the summer of 2005, Federal Senate Bill 1139 by then Senator Rick Santorum (R-PA,) co-sponsors Richard Durbin (D-IL,) and Arlen Spector (R-PA) shorthand, “PAWS” the Pet Animal Welfare Statute of 2005 to amend the Animal Welfare Act set usual allies against one another with its flawed provisions and eventually died of its own lack of merit. In the process of analysis, it was clear that the Animal Welfare Act includes nonprofit operators, although this had never been a focus of enforcement when most of this activity was small-scale and local. However, some of our associates urged us to publish information about this issue which we did in UPDATE: PAWS BILL RESCUE ISSUE, CA SB 861, July 10, 2005. We were lambasted as others tried, unconvincingly, to develop legal arguments that AWA did not apply to nonprofits.

This week, USDA-APHIS published a “Tech Note” — Questions and Answers: Activities with Dogs Requiring a USDA License/Registration — that refers to “adoption” scenarios requiring licensing. These were also discussed during the 2015 implementation of the Retail Pet Store Rule, so that the questions are not whether AWA covers rescue but under what facts and circumstances – just as breeders and others must analyze their own situations. Either adjust operations for exemption or license. The rationale for exemptions are based on lower risks to animals in commerce; without these, licensing protects animal with oversight.

For review, The Animal Council’s Update, July 10, 2005:

PAWS AND “RESCUE” ISSUES have inspired claims by proponents that AWA only covers “commerce” in a business sense and would exclude non-profit rescue organizations. Rather, the word “commerce” in federal law relates to the federal power to regulate commerce under the United States Constitution Commerce Clause Article I, §8, of the Constitution “[t]o make all Laws which shall be necessary and proper for carrying into Execution” its authority to “regulate Commerce with foreign Nations, and among the several States.” The term “commerce” was included in AWA in the 1970 amendments to provide jurisdiction within states as long as an activity had some impact on interstate commerce so that there would be no requirement that animals cross state lines. Historically the Commerce Clause has been broadly interpreted by the Supreme Court as to what has impact on interstate commerce, because this concept enables use of the federal government’s police power. The Supreme Court June 6, 2005 decision in the medical marijuana case, Gonzales, Attorney General, Et Al. V. Raich Et Al.  provides a current reference on the broad judicial interpretation of “commerce” for federal purposes. The Court noted that even “Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce is firmly established.” Such activities need not be conducted as a profit-making business.

COMMERCE INCLUDES RESCUE since animals transferred in rescue transactions are a significant portion of the total market for animals. Rescue animals are particularly involved with the alleged reasons for PAWS, i.e. use of the internet and imports as well as frequent interstate transport and sales of animals from undocumented sources and unregulated standards of care often involving large numbers of animals. There are no convincing policy reasons to exclude the rescue sector from inclusion in the PAWS dealer definition except as to those shelters operated under the PAWS pet store definition and thus excluded as dealers. The additional wording in the dealer definition, i.e. “dealer” means any person who, in commerce, for COMPENSATION OR PROFIT, would only exclude operators who received nothing of tangible value in exchange for placing animals. It is possible to structure rescue placements with no compensation, but many rescue organizations derive significant funding from these charges. Rescue transactions are legally treated as sales unless expressly excluded or treated differently for specific purposes by law, e.g. sales tax, warranties, etc. Note that the “consideration” required for a legally enforceable contract can be only a promise to do or not do something and not money or anything else of monetary value. The purposes of the AWA are to ensure the welfare of animals in commerce, which includes rescue animals, so excluding private rescue from proposed regulation of retail sellers defeats the statutory purpose to protect animals.

THE COW PALACE 2017: TAC’S Golden Gate Kennel Club Scrapbook

This year’s visit to the Golden Gate Kennel Club show was Saturday, January 28, 2017, sixty years on from when it was held in San Francisco in another era of dog shows but still a tradition and memorable occasion.

Now, at the state-owned Cow Palace in Daly City, San Mateo County, California as two individual shows rather than one 2-day show, it remains distinctive as a benched show that caters to the public gate.  Weather was sunny with no protesters at the front door, after several years, and the American Kennel Club booth up front in the main concourse.

The main arena, not the bustling, social place it used to be, but a stop off place to check out the catalog and get a feel for this year before beginning the trek.  Becky Richardson Luft and Dalmatian, Hacker, with his wagging tail in the corner Utility B ring.

The candy vendor must have retired, leaving nothing but a coffee stand. We’ll call this the new meet & greet area for those old folding chairs from the now gone “center aisle” with tables for the weary in the space formerly used by vendors who needed large spaces for their inventories of crates, beds, leashes and grooming equipment, no longer in attendance.

But once walking the aisles, there it is…through the years, the place where contacts are made, special things bought, memories and futures made.  The benches:

The breed tables:

The rescue tables:

Another year and more stock and color for Let’s Go Design! High end, practical “dog walking” jackets.

In 2017, the vendors were all in the main building, fewer but still plenty from the familiar to unusual.

And more:

Associated Obedience Clubs of Northern California — AOCNC — now “upstairs.”

AOCNC .JPG

One more look at the main arena.

Main Arena.JPG

Hope to be back, 2018.

***** THE END *****

 

SAN FRANCISCO MACY’S SFSPCA HOLIDAY WINDOWS 2017

A bright, cool Tuesday, December 19 was this year’s visit to the historic San Francisco SPCA’s  holiday adoption windows at the downtown Macy’s where holiday marketing meets adoption outreach on the prime retail corner of Stockton and O’Farrell streets. The big display corner window again re-purposed the favorite purebred dog figures in the Santa’s cyber-workshop scene. The adoption windows were lively and interesting and the adoption count stood at 166. The really big surprise this year was an entirely new operation on the store’s 6th floor that much better showcased the SFSPCA as well as brought more customers to the store’s holiday department. Genius!

Macy's 2017 166 homes

A third year of underground transit construction with Stockton Street becoming a low-key holiday street fair distracts from store windows but strikes a mood for something special.

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Anticipation, what’s in the windows? The hallmark corner window was again Santa’s North Pole operation combining navigational radar with handwritten lists of gifts to deliver. Santa was surrounded by helper elves and a crew of the favorite purebred dogs and one cat, just as loved as our own cherished holiday decorations.

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Now, for the adoption windows, one with 2 eight week old puppies of mysterious background and perhaps mischievous behavior, several kitten groups and a threesome of adult cats.

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Macy’s first floor near the main elevators has been the usual adoption area and “back room” of holding cages where prospective adopters can see additional pets, but there was a change this year.  Head up to the 6th floor!

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Holiday Lane is the destination for a visit to Santa, those gifty kinds of gifts and special ornaments including the purebred dog ornaments. Only six days before Christmas, the ornaments were already 65% off and the best ones long gone.

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Back at SFSPCA’s 6th floor corner was a whole new retail experience starting in the corner with a visible bank of cages, empty at the time, and some chairs for waiting male companions. Moving on were 2 separate service desks with a view of SFSPCA’s own merchandise including a basketful of its own ornaments. The big white gazebo housed the Purina sponsored “Cuddle Experience.” People with children lined up for an opportunity for carefully supervised children to go inside the structure to meet and play with some kittens, a memorable holiday experience for the visitors and new to the Macy’s – SFSPCA collaboration. Note, the labor intensive Cuddle Experience had more limited operating hours than the adoption center.

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The 2017 SFSPCA Holiday Windows and much more began November 17 and run through Monday, January 1, 2018.

Macy's 2017 - union sq

Union Square, Geary Street view from Macy’s, with the seasonal ice skating rink, an iconic place for generations of San Franciscans.

*****  THE END  *****

 

 

 

 

 

 

 

 

 

 

 

 

 

SAN FRANCISCO MACY’S SFSPCA HOLIDAY WINDOWS 2016

For many years in the San Francisco Bay Area, the holidays have been prime time for pet adoptions when many people have extra time and room in their hearts.  Wednesday morning, December 21, cool and sunny amidst plenty of street construction was the annual visit to the San Francisco SPCA’s  holiday adoption windows at the downtown Macy’s where holiday marketing meets outreach on the prime retail corner of Stockton and O’Farrell streets..  Although the windows this year were small, and there were only 3 animal windows, the lovely dog figures from years before 2015 were re-purposed in a new, bright scene in the corner window.  This was the third year of two blocks of Stockton Street closed to traffic for rail construction and covered with astroturf and new this year, food trucks.  The atmosphere is festive, if less elegant even with Neiman Marcus looming.  The destination window is nearly hidden behind the crowd and usual hot dog stand.

Finally, in an almost overwhelming red jumble is the corner window, inviting to sort out the narrative, the characters and contents.

corner-window-jumble

But first, the adoption windows.  One has 3 cats.

3-kittens-straight-cropped

Another has 2 puppies — 2-1/2 months old, soundly sleeping.

2-pups

The third and only pet window on O’Farrell Street is empty.

empty-kitten-window

Inside, tucked away behind scarves is the adoption desk and “back room” where the rest of the animals are, all visible were cats.

Back outside to survey the corner window in such contrast to the 2015 minimalist Peanuts theme.  This year’s setting is the North Pole’s command center where elves handle the navigation station and help Santa check his long list.  How will they ever pack so many presents?  There at the North Pole are all the wonderful purebred dogs and one cat once again, old friends in scene that assures visitors there are still visions of Christmas downtown San Francisco to attract pressing crowds even on a Wednesday morning.

And the old friends… the Afghan, the Bloodhound, the Rottweiler, the Dachshund, the Schnauzer, the Yorkie, the French Bulldog, the Papillon and the Siberian each high atop the console, the Boxer and the white cat.

the-afghan-2016rott-bloodhoundmost-of-dogsfrenchy-yorkie-schnauzercorner-window-jumble

p1190341papillon

Wanting a little glimpse of San Francisco elegance before leaving, just around the corner on Geary were the Louis Vuitton windows with more red — and meerkats, too.

The windows will be open through Sunday, January 1, 2017.  As of our visit, the adoption count was 179.  In 2015, the final count was 261.

179-loving-homes-12-21-2016

*** THE END 2016 ***