We do not need to speculate
about AKC's position on the AWA. We
have it in writing.
In a long letter to the
USDA dated September 23, 1998, Ms. Noreen
E. Baxter, Vice President for Public
Education and Legislation for the AKC,
set forth the AKC's position about the
AWA and the Petition for Rule-Making
by DDAL:
The AKC's long experience
dealing with breeders of purebred
dogs and its intimate knowledge of
the fancy gives the organization the
appropriate background to provide
meaningful comments and insight into
the issues raised by the regulatory
changes contemplated in the ANPR (Advance
Notice of Proposed Rulemaking). The
contemplated changes would affect
a large portion of the AKC's constituency,
and its constituency includes virtually
all hobby and show breeders who would
be affected by the contemplated changes.
For the reasons set
forth in detail below, the AKC believes
USDA's current definition of "retail
pet store" should be maintained,
as it comports fully with the purpose
of the Animal Welfare Act and prudently
directs USDAYs limited enforcement
resources to the area where they are
most needed - the wholesale
distribution and sale of dogs. . .
(Emphasis in original).
In the event that USDA
determines regulatory changes in this
area are necessary, AKC recommends
an approach which is both practical
within the scope of agency resources
and which would target the type of
breeders properly subject to regulation
- commercial breeders. .
. AKC believes that all wholesale
activity should continue to be regulated,
as such activity poses the greatest
potential for abuse and regulation
of such activity is clearly contemplated
in the statute. . . (Emphasis in original).
The 1970 Amendment
explicitly exempted "retail pet
stores" from regulation, although
it left the term undefined. . .
Thus, for nearly thirty
years, it has been well-settled that
the purpose of federal animal welfare
legislation has been to regulate wholesale
distribution of animals, and those
activities that are integrally related
to wholesale distribution such as
transportation and handling. During
this thirty-year period, this qualitative
wholesale/retail distinction has been
authoritatively adopted by this agency
on two occasions, left undisturbed
(if not explicitly endorsed) by several
Congressional revisions, and unchallenged
by the regulatory community or public-at-large.
For the reasons set forth below, we
believe it is the proper basis for
regulation. . . (Emphasis in original).
The clear effect of the package of
regulatory amendments being contemplated
is an abandonment of the long-standing
qualitative basis for regulation
- the wholesale/retail distinction
-- in favor of a strictly quantitative
basis - i.e. the number of
breeding females maintained. (Emphasis
in original). Thus, it is quite clear
that the ANPR does not deal in mere
regulatory nuances, but rather, reflects
a fundamental shift in regulatory
philosophy. (Emphasis added).
The ANPR is devoid of any commentary
on why a new criterion was needed,
why this criterion was selected, what
other criteria may have been considered
and rejected, and what specific objectives
regulation of breeders based on number
of breeding females is designed to
accomplish. Under the circumstances,
the public is not unjustified in perceiving
that the regulatory changes under
consideration in the ANPR are politically
motivated, and not actually necessary.
. .
As a practical matter, licensing
and regulation of persons who sell
puppies at retail from their own residential
property is wholly unnecessary. Buyers
who purchase a dog from the person
who bred and raised the animal on
their own residential property are
dealing directly with the breeder.
The buyer can take the necessary steps
to ascertain for himself or herself
the facilities of the breeder and
the condition of the breeder's dogs.
(Emphasis in original). . .
If USDA elects to abandon the wholesale/retail
distinction as the basis for regulating
the sale of animals, AKC believes
that the agency must still base its
regulation on whether the seller is
engaged in commercial or non-commercial
activity. . .
On the other hand, non-commercial
breeders, such as dog fanciers, do
not breed for profit. Common sense
tells us that persons who do not breed
for profit do not pose the same degree
of risk with respect to animal care
as do breeders whose chief motive
is profit. Indeed, most fanciers expect
to lose money on their breeding activities,
but do so anyway because of their
love for the sport and the animals
they raise. . . 18
The AKC went further than a simple
letter. It filed a Brief Amicus Curiae
in Support of the USDA's Motion for
Summary Judgment before the U.S. District
Court in which the AKC argued to the
court as follows:
