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July 16, 2012

BY FedEx and the Federal Rulemaking Portal at Regulations.gov

Secretary Tom Vilsack Secretary of Agriculture Attn: Docket No. APHIS-2011·0003 Regulatory Analysis and Development PPD, APHIS Station 3A·03.8 4700 River Road Unit 118 Riverdale, MD 20737·1238

SNR Denton US LLP 233 South Wacker Drive Suite 7800 Chicago, IL 60606-6306 USA

Anthony T. Eliseuson Partner anthony.eliseuson@snrdenton.com D +1 312 876 3139 T +1 312 876 8000 F +1 312 876 7934 snrdenton.com JUL 1 7 2012

Re: Animal Legal Defense Fund's Comments to Proposed Amendment to Animal Welfare re: Retail Pet Sales and Licensing Exemptions.

Docket No. APHIS-2011·0003

Dear Secretary Vilsack:

On behalf of the Animal Legal Defense Fund, Inc. ("ALDF') and its more than 100,000 members, we provide the following comments regarding the proposed amendments to the USDA and the Animal and Plant Health Inspection Service's ("APHIS") regulations under the Animal Welfare Act ("AWA''), including the amended definition of "retail pet store." ALDF is a national nonprofit corporation founded in 1979 by attorneys active in shaping the emerging field of animal law. Since its founding, ALDF has been fighting to protect the lives and advance the interests of animals through the legislative and legal system, including by seeking to strengthen and enforce statutes and regulations that promote more humane treatment of animals in every corner of American life.

ALDF Supports the Proposed Amended Definition to "Retail Pet Store."

ALDF appreciates your efforts, and the efforts of the hard working men and women of the USDA and APHIS, in taking this important step to close a significant loophole that allowed large-scale, commercial breeders, including those known colloquially as "puppy mills" to operate outside the inspection and registration

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regime of the AWA merely by restricting their sales to online, phone, or mail-order transactions. These puppy mills produce an estimated two to four million puppies each year, often in deplorable and inhumane conditions. The results of the breeding conditions have widespread negative ramifications on consumers, including increased veterinary costs and significant emotional distress caused by diseases that can lead to premature death or reduced lifespan of the animal.

The proposed amendment will ensure that dogs and other animals raised by such large-scale commercial breeders are protected by the AWA and APHIS's inspection process. While this is an important step, there is much more to be done, including as identified in the USDA's own reports-for example Audit Report 33002-4-SF, the APHIS Animal Care Program- Inspections of Problematic Dealers dated May 14, 2010 (the "2010 Audit"). ALDF has highlighted additional steps that should be undertaken to carry out Congress's command codified in the A W A below.

ALDF Opposes The Expanded Exemptions In The Proposed Amendment.

The proposed amendment would also expand the number of breeding females that a facility could possess before being subject to the registration and inspection regulations. ALDF opposes this proposed change, and more generally opposes any exemptions to the registration and inspection requirements. While the commentary supporting this proposed amendment states that this change is necessary to help focus APHIS's efforts on larger-scale breeders, ALDF maintains that this objective can be achieved through the use of APHIS's discretion rather than through exemptions that undermine the spirit of the A WA. Any exemption-whether codified or adopted as a general practice-could potentially be misused by puppy mills to improperly evade the A WA and these regulations, or could otherwise allow violations of the AWA to continue undetected at facilities merely because they fall into such an exemption.

Additional Steps That Should Be Taken to Properly Regulate (and Ultimately Eliminate) Puppy Mills:

ALDF encourages the USDA and APHIS to take the following additional steps to further improve the regulation and enforcement of the A W A:

Automatic enforcement action for first time violators. The 2010 Audit determined that an astonishing 64%-nearly two-thirds--of all breeders inspected during a three year period were cited for violations of the AWA. See 2010 Audit at 8

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(stating that during a three year period, 8,289 licensed dealers were inspected and 5,261 were determined to be in violation ofthe AWA).l Few, if any, first-time violators were subjected to an enforcement action, even for those found to be in "direct" violation (i.e., engaged in conduct with a high potential to adversely affect the health of an animal). I d. The lack of rigorous enforcement of the A WA has essentially eliminated the protections of the A W A as demonstrated by the high violation rate. Requiring enforcement actions will create a necessary deterrent effect that will eventually cause breeders to come into compliance with the AWA, greatly reducing the need for such actions in the future because the regulations are being complied with rather than ignored.

Automatic license suspension and substantial monetary fine for repeat violators. The 2010 Audit also noted an appalling lack of action taken against even repeat offenders. Indeed, 52% of the 2,416 repeat violators received no penalty even though APHIS's internal guidelines state that inspectors must recommend enforcement action for repeat violators. Id. at 8-9. Worse yet, the 2010 Audit noted that of the 4,250 violators that were subject tore-inspection, 2,416-or 57%­continued to be in violation (one in five of whom remained in violation for the same reason as previously cited). Id. at 8.

Imposing significant monetary fines for such knowing and repeat violations of the A WA is the only way to prevent such continuing conduct by removing the profit­motivation that is causing breeders to ignore the AWA's requirements.

Automatic "confiscation" or rescue of distressed animals. The 2010 Audit recommended requiring immediate confiscation where animals were dying or seriously suffering. Id. at 16. APHIS opposed that recommendation claiming that "current regulations are sufficient to allow immediate confiscation." Id. That position, however, was directly undermined by the lack of proper confiscation that allowed animals to remain in the possession ofbreeders even where death or serious injury was continuing as documented by several examples in the 2010 Audit itself. See id. at 10-14. These examples make clear that confiscation is not occurring as required to protect and prevent additional deaths of animals when a serious situation is found during an inspection. For example, no confiscation

I Given the demonstrated lenient tendencies of the inspectors, this figure is likely understated by a significant margin as many additional breeders that were in fact in violation of the AWA were likely provided with an oral "off the record" warning without a

formal written record of violation being created.

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occurred even when an inspector found a dog in which the "flesh around [an untreated] wound rott[ed] away to the bone." Id. at 10-11. Nor were the remaining over two hundred dogs confiscated from an Oklahoma breeder where five dogs were found dead and "other starving dogs 0 had resorted to cannibalism" to survive. Id. at 13. As the 2010 Audit notes: "[d]espite these conditions, [the inspector] did not immediately confiscate the surviving dogs and, as a result, 22 additional dogs died before the breeder's license was revoked." Id.

Simply put, any practice or policy that allows this type of conduct to occur, and continue to occur, without immediate confiscation is woefully inadequate. Thus, ALDF submits that immediate confiscation should be required whenever seriously injured or dead animals are found upon inspection as that fact standing alone demonstrates that the remaining animals at that facility are in reasonable danger of death or serious harm. Additionally, there should be significant employment sanctions imposed on inspectors that fail to confiscate animals in these situations, including potential termination.

Disclosure requirements. The USDA is also empowered to issue regulations that would require breeders found to be in violation of the AW A to clearly and conspicuously post and disclose that fact to its customers. This could include brokers or other intermediary sellers, who could be required, by contract with the regulated breeder, to similarly provide such disclosures to the end purchaser. Some states have adopted such pet disclosure laws in recent years, specifically to provide the customer with information to make an informed decision about their puppy purchase. Such a disclosure regulation would add further teeth to APHIS's inspection regime at little or no cost to APHIS.

Private right of action provision with fee shifting provision. Creating a private right of action for enforcement of the A WA would be another important and significant step towards reducing the substantial number of breeders who the 2010 Audit determined flagrantly operate in violation of the AW A's requirements. Allowing private parties to bring causes of action to enforce the A WA would help bolster the USDA's own enforcement mechanisms. Thus, ALDF submits that the USDA should formally request Congress to amend the A WA to provide such a private right of action. The ALDF looks forward to the opportunity to work with you to craft such proposed legislation that would facilitate your efforts to enforce the A W A without further burdening the limited resources at your disposal for such

efforts.

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In sum, on behalf of the ALDF and its more than 100,000 members, we thank you, the USDA, and APHIS, for diligently working to improve these regulations to facilitate the intended effect of the A WA and to protect dogs and other animals from inhumane treatment from breeders. We look forward to working with you to make further necessary amendments to the regulations and A W A to prevent the significant inhumane treatment of dogs and other animals that is unfortunately occurring on a daily basis in this country as your own reports and audits have demonstrated.

Very truly yours,

cc: Carter Dillard, Esq.