APHIS Animal Welfare Act Rulemaking After the 2014 Farm Bill and 2013 Amendments to AWA: The “de minimis” Term and its Applications

The comment period for the proposed rule has closed with little fanfare and probably less understanding.  Pet breeders currently exempt or licensed are probably unaffected unless they have another factors, but there are still regulatory developments that should be reviewed in order to maintain working knowledge of the Animal Welfare Act.  Below is our file memorandum of the rule items but not the deletions from existing regulations because of obsolete language for which biomedical research organizations did comment on their concerns that this was a substantive matter that was presented incorrectly and should be covered in a subsequent and separate Rule.  A total of 29 comments were submitted ranging from thoughtful to totally uninformed, major organizations to individuals, directly interested and not.  The major organizations focused on criticism of the proposed regulations for very small exhibitors and asked for more stringent language.  Reference links follow this entry.

The Humane Society of the United States (HSUS,) submitted a narrative of the Rule with emphasis on its own priorities and one request for a change, “The HSUS recommends that USDA more clearly define “substantial” as the proposed language provides insufficient guidance for regulated parties and those charged with enforcing the law. “Minimal amount of money” and “main source of the person’s income” are insufficient criteria: we recommend that USDA define “substantial portion of income” as more than 50% of the person’s income.”  Considering that a person might have a very low total income and support from other sources, the percentage would be no evidence of whether the actual amount was not substantial.  The Animal Welfare Institute in Washington D.C. also focused on this exemption for certain exhibitors, Section 2.1(a)(3)(xii) and recommended “exhibition for no more than ten days per 12 month period, for which the owner is compensated no more than $1,000 or 10% of his or her taxable income, whichever is less…”  The American Society for Prevention of Cruelty to Animals (ASPCA) echoed HSUS with, “In order to clarify application of the proposed de minimis thresholds for agency enforcement staff and the regulated community, APHIS should define “less than a substantial portion of income” as less than fifty percent of the individual’s income” and also stressed its overall criticism of the Agency.  The Association of Zoos and Acquariums (AZA) asked for expanded regulation, “we believe that there are other segments of the animal “industry” that should be subject to USDA licensure and regulation….namely those entities which hold potentially dangerous carnivores and non-human primates but are not presently subject to any federal agency oversight.”  An existing Class C licensee (exhibitor) argued that the exemptions were too liberal and asked that “anyone profiting by more than $100 a day from exhibiting an animal should be required to be licensed by the USDA or to work under the guidance of a licensed USDA trainer.”

ANALYSIS AND RELATED REFERENCES AND ISSUES: Docket No. APHIS–2014–0059, Thresholds for De Minimis Activity and Exemptions From Licensing Under the Animal Welfare Act

Background:

APHIS, Animal and Plant Health Inspection Service, USDA has published a proposed rule (Federal Register, Vol. 81, No. 150 / Thursday, August 4, 2016, Docket No. APHIS–2014–0059) entitled, “Thresholds for De Minimis Activity and Exemptions From Licensing Under the Animal Welfare Act.”  The proposed rule includes several new licensing exemptions combining the “de minimis” term added to the Animal Welfare Act Section 2133  by the 2014 Farm bill and the exhibitor definition in Section 2132 (amended by Congress in 2013, S. 3666; Public Law: 112–261.)  It also deletes from the regulations the language corresponding to the 2014 Farm Bill provision that deleted from the Section 2132(f) dealer definition the exclusion for “any person who does not sell, or negotiate the purchase or sale of any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year.”  The proposed changes to 9 Code of Federal Regulations (CFR)  include Part 1, Section 1.1 Definitions, new for dealer and exhibitor and Part 2, Regulations, Section 2.1 Requirements and Applications, (3) licensing exemptions, revision of exemption (ii) and addition of five new paragraphs including four new exemptions and one explanatory table of the new de minimis exemptions. The rule also includes a number of housekeeping amendments to Part 3 of the Regulations, Standards.

The key principle in understanding this proposed rule is implementation of Congressional intent to direct the agency’s efforts and resources to covered activities where risk to animal welfare is greater than operations keeping only few animals of species with well understood care standards under well understood circumstances.  Historically, APHIS has tried to maintain this priority with regulatory adjustments due to industry changes such as 2012 Docket No. APHIS–2006–0159 (77 FR 76815–76824 that revised the retail pet store definition and related exemptions or now with these 2013 and 2014 amendments to AWA.  Congress relies on the agency’s experience and knowledge of animals and operations to develop specific exemptions for low risk factual scenarios.  As the basis for these proposals, the agency cites its specific rationale for each issue and also asks questions for instances where is less certainty.  These questions offer those with expertise limited opportunities for input in the Final Rule.

In explaining its purpose and scope, the proposed rule references the Farm Bill Conference Report, Item 19 that explained the rational and expectations for these 2014 amendments to AWA.  The proposed rule states, “this legislation codifies the exemption we made to the regulations in § 2.1(a)(3)(vii) for purebred dog and cat fanciers, and/or breeders of small exotic or wild mammals, who maintain four or fewer breeding females and sell the offspring at retail for pets or exhibition.”  The explanation continued that “we intend to retain these exemptions, with four or fewer breeding female dogs, cats, and small exotic or wild mammals sold at wholesale” because “thresholds in the current exemptions for dealers are based on the total number of breeding females of all species combined” are low enough that operators are able to provide adequate care without regulatory supervision.  What is not addressed or included in the proposed regulation amendments is the Conference Report subject of breeding females when there is no statutory reference or authority for this key element that is becoming even more important with these proposals.  On this subject, the Report stated:

“The Managers are aware of confusion among the regulated industry and request clarification of two principles pertaining to the sale of pets: (1) Current regulatory language uses the term ‘‘breeding female’’ which does not appear in statute and thus lacks statutory direction. The Managers urge APHIS to clarify that only those female animals capable of reproduction and actively being used in a breeding program qualify as breeding females.”

Based on its repeated reliance on the number “four” as its experience substantiated standard for ensuring adequate care and basis for additional exemptions, an inference might be drawn from the omission that the agency does not believe the “breeding female” term warrants further clarification in the de minimis exemption context.  However, commenters might disagree and raise this issue.

The statutory foundations for principles underlying the proposed regulations are 7 USC (AWA):

Section 2132  (h) The term “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, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not; but such term excludes retail pet stores, 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, 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.

Section 2133. Licensing of dealers and exhibitors

The Secretary shall issue licenses to dealers and exhibitors upon application therefor in such form and manner as he may prescribe and upon payment of such fee established pursuant to 2153 of this title: Provided, That no such license shall be issued until the dealer or exhibitor shall have demonstrated that his facilities comply with the standards promulgated by the Secretary pursuant to section 2143 of this title: Provided, however, That a dealer or exhibitor shall not be required to obtain a license as a dealer or exhibitor under this chapter if the size of the business is determined by the Secretary to be de minimis. The Secretary is further authorized to license, as dealers or exhibitors, persons who do not qualify as dealers or exhibitors within the meaning of this chapter upon such persons’ complying with the requirements specified above and agreeing, in writing, to comply with all the requirements of this chapter and the regulations promulgated by the Secretary hereunder.

Proposed definitions and exemptions, explanations and issues:

  • 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; or 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, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not; but such term excludes retail pet stores, 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, 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.

PART 2—REGULATIONS

9 CFR 2.1(3) licensing exemptions, existing (i) through (viii) as follows:

(3) The following persons are exempt from the licensing requirements under section 2 or section 3 of the Act:

(i) Retail pet stores as defined in part 1 of this subchapter:   NOTE – referenced definition below.

9 CFR 1.1, Definitions:

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, domestic ferrets, domestic farm animals, birds, and coldblooded species. In addition to persons that meet these criteria, retail pet store also includes any person who meets the criteria in § 2.1(a)(3)(vii) of this subchapter. Such definition excludes—

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

(2) Establishments or persons, except those that meet the criteria in § 2.1(a)(3)(vii), 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.

As to (ii) the proposed rule states, “However, to make the regulations consistent with the amended Act, we are proposing to remove in its entirety the $500 gross income exemption from licensing currently in § 2.1(a)(3)(ii)” and further explains the proposed new content, “In its place, we would add language that exempts from licensing any person whose business is determined by APHIS to be de minimis in accordance with the proposed regulations in § 2.1(a)(3).”

(ii) 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 during any calendar year and is not otherwise required to obtain a license Any person whose AWA-related business activity is determined by APHIS to be de minimis in accordance with the regulations in this section;

(iii) Any person who maintains a total of four or fewer breeding female dogs, cats, and/or small exotic or wild mammals, such as hedgehogs, degus, spiny mice, prairie dogs, flying squirrels, and jerboas, and who sells, at wholesale, only the offspring of these dogs, cats, and/or small exotic or wild mammals, which were born and raised on his or her premises, for pets or exhibition, and is not otherwise required to obtain a license. This exemption does not extend to any person residing in a household that collectively maintains a total of more than four breeding female dogs, cats, and/or small exotic or wild mammals, regardless of ownership, nor to any person maintaining breeding female dogs, cats, and/or small exotic or wild mammals on premises on which more than four breeding female dogs, cats, and/or small exotic or wild mammals are maintained, nor to any person acting in concert with others where they collectively maintain a total of more than four breeding female dogs, cats, and/or small exotic or wild mammals regardless of ownership;

(iv) Any person who sells fewer than 25 dogs and/or cats per year, which were born and raised on his or her premises, for research, teaching, or testing purposes or to any research facility and is not otherwise required to obtain a license. This exemption does not extend to any person residing in a household that collectively sells 25 or more dogs and/or cats, regardless of ownership, nor to any person acting in concert with others where they collectively sell 25 or more dogs and/or cats, regardless of ownership. The sale of any dog or cat not born and raised on the premises for research purposes requires a license;

(v) Any person who arranges for transportation or transports animals solely for the purpose of breeding, exhibiting in purebred shows, boarding (not in association with commercial transportation), grooming, or medical treatment, and is not otherwise required to obtain a license;

(vi) Any person who buys, sells, transports, or negotiates the sale, purchase, or transportation of any animals used only for the purposes of food or fiber (including fur);

(vii) Any person including, but not limited to, purebred dog or cat fanciers, who maintains a total of four or fewer breeding female dogs, cats, and/or small exotic or wild mammals, such as hedgehogs, degus, spiny mice, prairie dogs, flying squirrels, and jerboas, and who sells, at retail, only the offspring of these dogs, cats, and/or small exotic or wild mammals, which were born and raised on his or her premises, for pets or exhibition, and is not otherwise required to obtain a license. This exemption does not extend to any person residing in a household that collectively maintains a total of more than four breeding female dogs, cats, and/or small exotic or wild mammals, regardless of ownership, nor to any person maintaining breeding female dogs, cats, and/or small exotic or wild mammals on premises on which more than four breeding female dogs, cats, and/or small exotic or wild mammals are maintained, nor to any person acting in concert with others where they collectively maintain a total of more than four breeding female dogs, cats, and/or small exotic or wild mammals regardless of ownership.

(viii) Any person who buys animals solely for his or her own use or enjoyment and does not sell or exhibit animals, or is not otherwise required to obtain a license;

The Proposed Rule would add 5 additional subsections, ix through viii:  These include one new catchall exemption (ix), three new exemptions applicable only to exhibitors (x, xi and xii) and one table (viii) summarizing the four de minimis exemptions.

The proposed Rule states, “We propose in a new § 2.1(a)(3)(ix) to establish a de minimis exemption for any person who maintains a total of four or fewer breeding female dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep, and who sells, at retail or wholesale, only the offspring of these animals, which were born  and raised on his or her premises, and is not otherwise required to obtain a license. As is the case with the current licensing exemptions, this de minimis exemption from licensing as a dealer would not extend to any person residing in a household that collectively maintains a total of more than four such breeding female animals, regardless of ownership, nor to any person maintaining such breeding female animals on premises on which more than four such breeding female animals  are maintained, nor to any person acting in concert with others where they collectively maintain a total of more than four such breeding female animals, regardless of ownership. The animals listed as eligible for the proposed de minimis exemption were chosen because they are common domesticated animals with a well-established history of known welfare standards. Again, businesses already exempted under current licensing exemptions would not be affected by this proposed exemption, nor would sales of farm animals be affected if they are sold for the purpose of improving animal nutrition, breeding, management, or production efficiency, or for food or fiber.”

This proposed exemption reads:

(ix) Any person who maintains a total of four or fewer breeding female dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep, and who sells, at retail or wholesale, only the offspring of these dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep, which were born and raised on his or her premises, and is not otherwise required to obtain a license. This exemption does not extend to any person residing in a household that collectively maintains a total of more than four breeding female dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep, regardless of ownership, nor to any person maintaining breeding female dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep on premises on which more than four breeding female dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep are maintained, nor to any person acting in concert with others where they collectively maintain a total of more than four breeding female dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep, regardless of ownership.

The three Exhibitor Exemptions are explained and read respectively as follows:

“As indicated above, we also propose to establish de minimis thresholds for some businesses engaged in AWA covered exhibition activities. This action would exempt exhibitors considered to be de minimis from licensing if they meet the proposed thresholds and relieve them of the requirement to perform the reporting and recordkeeping activities associated with licensing.

The de minimis thresholds we propose to include for exhibitors would be based on the size of their AWA related business activity as measured by the total number of animals maintained, the type of exhibitor activity, and/or the duration of exhibition (as measured in days). However, there are situations that preclude de minimis consideration for certain exhibitors. In the Conference Report accompanying the 2014 Farm Bill amendments to the Act, Congress indicated that ‘‘an exhibitor’s business must not be considered de minimis merely because the facility operates as a non-profit corporation, nor is the exhibition of a small number of dangerous animals (including, but not limited to, big cats, bears, wolves,nonhuman primates, or elephants) de minimis.’’

In a new § 2.1(a)(3)(x), we would establish a de minimis licensing exemption for people in a household who in total maintain four or fewer dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep, for exhibition and who houses the animals at a site for year-round exhibition, and is not otherwise required to obtain a license. This exemption for a license as an exhibitor would not extend to any person residing in a household that collectively maintains a total of more than four such animals, regardless of ownership, nor to any person maintaining such animals on premises on which more than four such animals are maintained, nor to any person acting in concert with others where they collectively maintain a total of more than four such animals, regardless of ownership.

Based on our extensive knowledge and experience of animals used for year round exhibition purposes, we determined the threshold for this exemption to be four, as exhibitors with a small number of common, domesticated, non-dangerous animals are capable of providing adequate care and treatment for the animals involved in regulated business activities, based on compliance data on currently licensed exhibitors.”

(x) Any person who maintains a total of four or fewer dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep, for exhibition and houses the animals permanently at the site where they are exhibited year-round, and is not otherwise required to obtain a license.  This exemption does not extend to any person residing in a household that collectively maintains a total of more than four dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep, regardless of ownership, nor to any person maintaining dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep on premises on which more than four dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep are maintained, nor to any person acting in concert with others where they collectively maintain a total of more than four dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep, regardless of ownership.

“In a new § 2.1(a)(3)(xi), we would also include de minimis licensing exemptions for certain persons using animals in seasonal exhibitions. The exemption would apply to any person who maintains a total of eight or fewer dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep, for seasonal exhibition only, and who exhibits any or all of the animals for no more than 30 days per calendar year, and is not otherwise required to obtain a license. This exemption would not extend to any person residing in a household that collectively maintains a total of more than eight such animals, regardless of ownership, nor to any person maintaining eight such animals on premises on which more than eight such animals are maintained, nor to any person acting in concert with others where they collectively maintain a total of more than eight such animals, regardless of ownership. We determined the de minimis threshold for seasonal exhibition to be eight common, domesticated, nondangerous animals based on the fact that, unlike animals exhibited year round, animals exhibited seasonally are displayed to the public for a minimal period of time (30 days or less each year) during holiday seasons such as Easter, Halloween, Thanksgiving, and Christmas.”

(xi) Any person who maintains a total of eight or fewer dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep, for seasonal exhibition and exhibits any or all of the animals for no more than 30 days per calendar year, and is not otherwise required to obtain a license. This exemption does not extend to any person residing in a household that collectively maintains a total of more than eight dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep, regardless of ownership, nor to any person maintaining eight dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep on premises on which more than eight dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep are maintained, nor to any person acting in concert with others where they collectively maintain a total of more than eight dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep, regardless of ownership.

“Therefore, we propose to include a regulatory licensing exemption in a new § 2.1(a)(3)(xii) for any person who maintains a total of four or fewer common, domesticated household pet animals, who uses them for intermittent or infrequent exhibition for no more than 30 days per calendar year, who derives less than a substantial portion of income from a nonprimary source for exhibiting such animals, whose animals reside exclusively at the residence of the owner, and who is not otherwise required to obtain a license. This exemption would not extend to any person residing in a household that collectively maintains a total of more than four pet animals, regardless of ownership, nor to any person maintaining pet animals on premises on which more than four pet animals are maintained, nor to any person acting in concert with others where they collectively maintain a total of more than four pet animals, regardless of ownership.  We determined the total number of animals for this exemption to be four because our experience indicates that exhibitors who maintain and exhibit four or fewer animals and those who exhibit resident pet animals infrequently or intermittently (i.e., no more than 30 days per year) for minimal amounts of money are capable of providing adequate care and treatment for the animals involved in the regulated business activities without Federal licensing and inspection requirements to ensure animal welfare.  Additionally, exhibitors with four or fewer animals are less likely to generate a substantial income as a primary source from exhibiting such animals compared to persons exhibiting with larger numbers of animals as the primary source of income.”

(xii) Any person who maintains a total of four or fewer common, domesticated, non-dangerous household pet animals for infrequent or intermittent exhibition for no more than 30 days per calendar year, who derives less than a substantial portion of income from a nonprimary source for exhibiting such animals, whose animals reside exclusively at the residence of the owner, and who is not otherwise be required to obtain a license. This exemption would not extend to any person residing in a household that collectively maintains a total of more than four pet animals, regardless of ownership, nor to any person maintaining pet animals on premises on which more than four pet animals are maintained, nor to any person acting in concert with others where they collectively maintain a total of more than four pet animals, regardless of ownership.

Summary table included as a numbered subsection (viii🙂

“For easier reference, we also propose adding to the regulations a new § 2.1(a)(3)(xiii) that includes a summary table of the de minimis threshold requirements included in paragraphs (a)(3)(ix) through (a)(3)(xii).  The proposed thresholds are ultimately based on our experience that businesses conducting AWA-regulated activities with the animals indicated for each threshold present a minimal risk to animal welfare and therefore do not require APHIS licensing and inspection.  However, the list of animals eligible for de minimis consideration is not intended to be exhaustive. We encourage public comment on the proposed exemption thresholds as they pertain to animal welfare and effects on businesses engaged in the breeding, dealing, or exhibition of animals.  We also invite comments on the types of exhibition proposed in the table, particularly with regard to types of animals and exhibition business models that may not be represented here.”

(xiii) Following is a summary of the de minimis exemption requirements for paragraphs (ix) to (xii) of this section: de-minimis-thresholds-from-licensing-table

The experience based principles used by APHIS include:

1 – Only one exemption per premises regardless of ownership of individual breeding females for combined species or number of owners or occupants of the premises.  This standard of one exemption per premises principle had been established by prior Docket 97-121-1 adopted in 2004 amending Section 2.1(a)(3)(iii.)  Generally applying this principle with its experience based “four” number, the new exhibitor exemptions are limited to no more than 4 pet animals maintained on one premises. This not only ensures proper care but increases the likelihood in combination with time limits for exhibition, only a small amount of income is likely to be produced.

2 – As to exhibitors excluded by the statutory definition, exhibitors’ income, “minimal amount of money that the owner makes from exhibiting animals. We interpret ‘‘a nonprimary source’’ to mean the activity is not a full-time job or primary source of income.”  Based on its experience, the agency states, “Based on the industry pay rates for pet animal film work and on our experience from working with small exhibitors, we determined that persons with four or fewer common domesticated household pet animals that are exhibited infrequently or intermittently generate a less than substantial portion of income and therefore meet the requirements for the exclusion.”

3 – The species allowed for these exemptions are limited to those that can be used as pets, are considered nondangerous and domesticated with well understood behavior and standards of care.  For proposed exemption (xi) the allowed species are dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep for which the maximum is 4 breeding females of all allowed species combined. Cows, goats, pigs and sheep are excluded as livestock if they meet that exclusion criteria, “farm animals that are used or intended for use as food or fiber, or for improving animal nutrition, breeding, management, or production efficiency.”  Otherwise the Rule notes that “farm animals used or exhibited for regulated purposes, such as petting zoos, would continue to fall under the scope of the Act unless they otherwise qualify for a de minimis exemption from licensing.”  This is a key difference between proposed exemption (ix) and existing exemptions (iii) and (vii) that include “small exotic or wild mammals” in covered species but do not anticipate breeding farm animals as pets.  Proposed exemption (ix) includes these along with some small pet species, “dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep.”

4 – As to non-breeding animals used in exhibitions, APHIS relates different but small numbers of animals to the location and number of days exhibited, i.e. different operating models as the criteria for determining de minimis character not requiring regulatory supervision.

Specific issues proposed by APHIS for public comment include:

1 – “We encourage public comment on the proposed exemption thresholds as they pertain to animal welfare and effects on businesses engaged in the breeding, dealing, or exhibition of animals.”

2 – “We also invite comments on the types of exhibition proposed in the table, particularly with regard to types of animals and exhibition business models that may not be represented here.”

3 – “We interpret less than substantial income to mean the exhibition generates a minimal amount of money and does not constitute a main source of the person’s income. We seek comment on this interpretation and whether we should add it to the regulatory text.”

EDITOR’S NOTE:  The Comment period closed on November 2, 2016, and the 27 submitted comments are posted in the online Docket file where further developments will eventually be posted. 

Instructions:

This proposed rule is Docket No. APHIS–2014–0059.  Comments must be received on or before November 2, 2016 and submitted either online through the Federal eRulemaking Portal http://www.regulations.gov/docket?D=APHIS-2014-0059 or by mail or delivery to Docket No. APHIS–2014–0059, Regulatory Analysis and Development, PPD, APHIS, Station3A–03.8, 4700 River Road, Unit 118, Riverdale, MD 20737–1238           

Note that submitted comments are posted online at this portal along with all the file documents including the Federal Register publication of the Docket.

Other references:

The 2014 Farm Bill and Conference Report document referenced in the Docket and here is at https://www.gpo.gov/fdsys/pkg/CRPT-113hrpt333/pdf/CRPT-113hrpt333.pdf

Animal Welfare Act, current   http://goo.gl/nuznYz

CFR Title 9, Animals and Animal Products    http://goo.gl/oSvQSe

U.S. Government Printing Office combined version of Farm Bill amendments and Conference Report.  Relevant materials are AWA amendments at pages 348-349 and Conference Item 19 at pages 561-563. http://www.gpo.gov/fdsys/pkg/CRPT-113hrpt333/pdf/CRPT-113hrpt333.pdf