LEGAL ARGUMENT (LETTER) TO APHIS
THE ARGUMENT AND COMMENTS
APHIS PROPOSAL VIOLATES REGULATIONS. Career government attorney defends dogs and dog breeders against Animal and Plant Health Inspection Service Proposed Rule.
Franklin W. Losey, sent July 10, 2012
Click to (about 25 pages)
Docket No. APHIS-2011-0003
Regulatory Analysis and Development PPD
APHIS, Station 3A-03.8
4700 River Road, Unit 118
Riverdale, MD 20737-1238
RE: Docket No. APHIS-2011-0003 - - Comments Submitted with Respect to the Proposed Rule
INTRODUCTORY BACKGROUND: During the last nine-plus years, I have communicated in person, by phone, by E-Mail, by FAX, by correspondence and through the use of the Internet with thousands of breeders from all 50 States. While many were commercial breeders who already were USDA Licensed and Inspected by APHIS Inspectors, several thousand of them were the so-called “Hobby Breeders” who were never before required to be USDA Licensed. In those nine-plus years, I have devoted over 12,000 hours to the process of educating myself about all aspects of the dog breeding industry; speaking at dog breeder events and educational seminars, including Hobby Breeder events and seminars; physically visiting kennels; meeting and communicating with APHIS and State Government Representatives who were responsible for implementing and enforcing the Animal Welfare Act, comparable State Statutes and Implementing Regulations; reading, reviewing and studying - - from cover-to-cover - - the Animal Welfare Act and the APHIS “Blue Book;” meeting with Senior Leadership Officials within the American Kennel Club (AKC) and other Dog Registries; communicating with the Senior Leadership of the American Bar Association about its position on animal welfare issues; meeting with Senior Members of the Humane Society of the United States, the former Doris Day Animal League, which has since been merged into the HSUS, and the American Welfare Institute (AWI); exchanging multiple letters and E-Mails with Mr. Wayne Pacelle, the President and CEO of the HSUS; and orchestrating the public condemnations of substandard kennels by Commercial Breeder Organizations in the 10 States where over 80% of USDA Licensed Breeders are located. With this background, and on behalf of all breeders - - many of whom do not have computers, such as those in the Amish communities - - who may be affected by the Proposed Rule, I respectfully request that the Proposed Rule be withdrawn because of the 21 separate and distinct reasons, as discussed below, that demonstratively establish that APHIS has failed to “fully” comply with the letter, spirit and intent of the mandatory requirements as set out in the Administrative Procedures Act, the Regulatory Flexibility Act, the Paperwork Reduction Act, and Executive Orders 12866 and 13563.
BASES FOR ASSERTING FLAWED “COMPLIANCE” WITH FEDERAL STATUTES AND EXECUTIVE ORDERS BY THE DEPARTMENT OF AGRICULTURE (USDA) AND THE ANIMAL AND PLANT HEALTH AND INSPECTION SERVICE (APHIS) WITH RESPECT TO ITS PROPOSED RULE THAT WAS PUBLISHED IN THE FEDERAL REGISTER ON MAY 16, 2012
1. THE PROPOSED RULE WILL INCREASE THE RISK OF THE SPREAD OF PARVO, ESPECIALLY TO HEALTHY BORN PUPPIES; AND IT IGNORES THE IMPACT ON EXISTING BIO-SECURITY PROCEDURES OF BREEDERS; Although the stated purpose and “BENEFIT” of the Proposed Rule is to “bring more pet animals sold at retail under the protection of the Animal Welfare Act,” THE PROPOSED RULE, AS WRITTEN, WILL HAVE THE “UNINTENDED CONSEQUENCE” OF REDUCING - - REPEAT, “REDUCING” - - THE “PROTECTION” OF “PET ANIMALS” SOLD AT RETAIL!
The Proposed Rule will require that potentially tens of thousands of personal residences of Hobby Breeders will be open to the General Public, in much the same way as Pet Stores are open to the General Public, in order for the Hobby Breeders to avoid being further required to be USDA Licensed. The "unintended consequence" of converting personal residences into de fact "retail pet stores" is that the Members of the General Public may unwittingly and unintentionally expose young puppies to the increased risk of contracting "PARVO."
Parvo is a highly contagious virus that turns healthy puppies into terminally ill puppies. With precious few exceptions, breeders understand that if they do not safeguard their breeding stock and puppies from Parvo, they could lose them all to this insidious virus. In short, regardless of whether these Hobby Breeders are licensed or not, economics and a loving, committed care for all of their animals that they have in their homes and kennels have resulted in them learning how best to protect their homes and kennels from “outsiders” who may unwittingly and unintentionally bring the Parvo Virus into their homes and kennels from their clothing and from the soles of their shoes. That is why they have adopted Bio-Security Procedures to reduce the threat and risk of exposing vulnerable puppies to the Parvo Virus. These Bio-Security Procedures include limiting who has direct access to their homes and kennels.
Despite the fact that all responsible breeders have instituted Bio-Security Procedures in their homes and kennels to protect their dogs and puppies from the dreaded Parvo Virus, the Proposed Rule, in a most cavalier disregard for its stated purpose of "protecting more animals sold at retail," fails to address, or even mention, the potential threat of an increased risk of the spread of Parvo in its Regulaty Impact Assessment. Such an omission not only contradicts the fundamental essence of its stated benefit to “bring more pet animals sold at retail under the protection of the Animal Welfare Act,” but it actually will DECREASE the "protection" of "more pet animals sold at retail!"
Most assuredly, APHIS does not wish to unwittingly create the potential of decreasing the "protection" of "more pet animals sold at retail!" Consequently, it is imperative that APHIS withdraw the Proposed Rule, without further ado, and re-examine its asserted "benefit," and consider other "alternatives" that may accomplish the desired benefit. Such a withdrawal of the Proposed Rule would be totally consistent with the standards as established in the Administrative Procedures Act, and Executive Orders 12866 and 13563, and would be in the best interests of the animals that the Animal Welfare Act is intended to protect.
2. ARBITRARINESS OF THE LIMITATION OF 2,000 “CHARACTERS” FOR COMMENTS SUBMITTED ELECTRONICALLY: A limitation of 2,000 words for any electronic submission of Public Comments is, in and of itself, an unreasonable limitation that is inconsistent with the letter, spirit and intent of the Administrative Procedures Act and Executive Order 12866. However, to impose an even greater limitation of but 2,000 “characters,” as opposed to 2,000 words, magnifies the unduly arbitrariness of the limitation that has been established for anyone who wishes to submit substantive comments electronically that address all valid issues that are raised in the Proposed Rule. Consequently, the opportunity to submit comments is arbitrarily, inappropriately and improperly being placed on Members of the Public who wish to submit comprehensive comments and suggestions. After all, the purpose of "Public Comments" is to ensure that the interests of not only the Government, but the interests of the affected Public are best served by affording the Public with an opportunity to submit comments before any Proposed Rule becomes a Final Rule. And this unduly restrictive limitation is further compounded by the fact that APHIS posted a new Questions and Answers Fact Sheet on July 5, 2012 - - just 11 days before the "Public Comment Period" ends! In short, the Public is being given but 11 days to submit substantive comments, as opposed to the published "60 days." This “error” in judgment may only be cured by APHIS withdrawing the Proposed Rule. If APHIS still deems it appropriate to publish a new Proposed Rule, it may then republish the Proposed Rule with a new 60 Day Comment Period, but only after it has complied with all aspects of the Administrative Procedures Act.
As an aside, it is borders on hypocrisy for APHIS to publish a Proposed Rule that concerns “compliance” with a Federal Statute, when it fails to “comply” with the basic fundamental requirements, as set out in the Administrative Procedures Act and Executive Order 12866.
3. CURSORY REFERENCES TO THE ADMINISTRATIVE PROCEDURES ACT, REGULATORY FLEXIBILITY ACT, PAPERWORK REDUCTION ACT AND EXECUTIVE ORDERS 12866 AND 13563: Merely “referencing” and making self-serving statements that the mandatory requirements as set out in the Statutes and Executive Orders have been met do not rise to the level of actually satisfying the substantive requirements mandated for any Proposed Rule. Such a perfunctory exercise, often referred to as “pencil whipping,” is totally unacceptable, especially since APHIS has properly identified the Proposed Rule to be “significant for the purposes of Executive Order 12866.” Specific examples of non-compliance are discussed and set out below.
4. “IMPACT OF THE PROPOSED RULE ON SMALL ENTITIES”: With rare exceptions, the Proposed Rule will have a dramatic impact upon potentially “hundreds of thousands of dog breeders throughout the United States,” as opposed to the purported “1,500” breeders that are cited in the Federal Register by APHIS. The reference to “hundreds of thousands of dog breeders throughout the United States” is a direct quote from the very first sentence in the Decision rendered by the Federal Judge for the United States Court of Appeals for the District of Columbia Circuit on January 14, 2003 in the case of “Doris Day Animal League v. Ann M. Veneman, in her official capacity as Secretary, United States Department of Agriculture.”
Notwithstanding the Judicial “Finding” that was made by a Federal Appellate Judge that there were “hundreds of thousands of dog breeders throughout the United State,” the USDA, and specifically APHIS, have ignored this fact and have made an unsubstantiated assertion that only “1,500” breeders would be affected by this Proposed Rule. Compounding the superficiality of the purported logic of APHIS’ calculations is the fact that APHIS made no effort to use empirical data to support its unsubstantiated “assumption” that only “1,500” breeders - - and that number included breeders of other animals beside dogs - - of the “hundreds of thousands of dog breeders throughout the United States” would be affected by the Proposed Rule. In this regard, since APHIS is part of the USDA, and was intimately familiar with the issues in the Doris Day Lawsuit, especially since one of the issues in that case dealt with the definition of a “retail pet store,” APHIS had a statutory duty, which it has failed to fulfill in its “assessment” of how many breeders potentially would be affected by the Proposed Rule. Since it failed to fulfill its statutory duty to perform a comprehensive “assessment,” APHIS must withdraw the Proposed Rule, and complete a comprehensive analysis that it will resubmit to the Office of Information and Regulatory Affairs as to why only “1,500” breeders of multiple types of animals - - not just dogs - - would be affected by its Proposed Rule, as opposed to the potential of it affecting tens of thousands of the “hundreds of thousands of dog breeders throughout the United States.”
5. FURTHER IMPACT OF THE DORIS DAY ANIMAL LEAGUE v. VENEMAN, SECRETARY OF AGRICULTURE LAWSUIT: The Appellate Judge in this case reviewed a number of issues associated with the definition of a “retail pet store,” and an ultimate determination was made that Congress did not intend for breeders who “sell dogs as pets from their residences” to be required to be licensed. A key quote from the Appellate Court Decision was: “Congress has not altered the regulatory definition of ‘retail pet store’ although it has amended the act three times. One line of Supreme Court cases holds that when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.” In short, since language in the Appellate Court’s decision supported the express exclusion of sales from residences from licensing requirements, the USDA is exercising ultra vires powers that were not granted by Congress to unilaterally change the definition of a "retail pet store" without the express authority granted to it by Congress to do so. For this reason alone, the Proposed Rule must be withdrawn until an appropriate, written assessment of this issue is addressed and submitted to the Office of Information and Regulatory Affairs for review. Additionally, it should also be reviewed by the Congressional Budget Office, and the Congressional Liaison Office.
6. MONUMENTAL UNDERESTIMATION OF THE NUMBER OF BREEDERS WHO MAY HYPOTHETICALLY BE AFFECTED BY THE PROPOSED RULE: Since the USDA was a named defendant in the above discussed Doris Day Lawsuit, APHIS has imputed knowledge of the Judicial Findings that were made in that Lawsuit. One such Finding was that there were “hundreds of thousands of dog breeders throughout the United States.” The disparity between APHIS’ determination that only "1,500 breeders" would be affected out of “hundreds of thousands of dog breeders “suggests that the APHIS estimate is absurdly low, unless “hundreds of thousands of dog breeders” abandon their “hobby” of breeding a limited number of dogs. This “disparity” in the “suggested” number of breeders who would be affected by the Proposed Rule required - - absolutely required - - that APHIS explain in greater detail in its Regulatory Impact Assessment and Cost Assessment why there would only be "1,500 breeders" affected by the Proposed Rule. Conspicuous by its absence was any discussion in the Regulatory Impact Assessment or the Cost Analysis and Assessment of the potential impact on the "hundreds of thousands of dog breeders” that were judicially determined to exist. The absence of any discussion of such a monumental number of potential breeders who could be affected by the Proposed Rule constitutes a fundamental failure of APHIS to comply with the Administrative Procedures Act. In short, APHIS was derelict in its failure to consider and reference in its Assessments the Judicial Finding that “hundreds of thousands of dog breeders” existed. Furthermore, APHIS should have specifically addressed the issue of how many of those “hundreds of thousands of dog breeders” would have been affected by the Proposed Rule. The failure of APHIS to address this pivotal and essential issue in its Assessments may only be corrected by withdrawing the Proposed Rule. Then and only then, if it continues to believe that it would be appropriate to publish a new Proposed Rule, it must prepare a new and comprehensive Regulatory Impact Assessment that is consistent with the requirements as set out in the Administrative Procedures Act and Executive Orders 12866 and 13563.
7. FAILURE TO ADDRESS THE POTENTIAL IMPACT ON THE RIGHT OF “PRIVACY,” AND THE RIGHTS OF “LIFE, LIBERTY AND THE PURSUIT OF HAPPINESS”: Since the potential number of breeders who could be affected by the Proposed Rule could number into the “hundreds of thousands,” rather than the grossly underestimated 1,500 suggested by APHIS, this fact should have been brought to the attention of the Office of Information and Regulatory Affairs and to Congress, rather than pursuing what amounts to be a de facto and inappropriate attempt to usurp the Powers of Congress by administratively expanding the definition of a “retail pet store” to include dogs sold "from their residences." Such an expansion of the definition of a "retail pet store" totally ignores a judicial finding, and goes far beyond what the Judicial Branch of our Government determined to be the intent of Congress. Exacerbating this "Usurpation of Power" by APHIS is the fact that such a Proposed Rule would permit APHIS Officials to literally inspect the bedrooms of potentially "hundreds of thousands of dog breeders," and shred the sanctity of the privacy of their homes. There are less intrusive ways to accomplish the purported goals of APHIS than by desecrating the Constitutional Rights of “hundreds of thousands of dog breeders,” but none of them were fully discussed in the Regulatory Impact Assessment that was prepared by APHIS. Such a sweeping desecration of Constitutions Rights is not only an affront to those “hundreds of thousands of dog breeders” who may be affected by the Proposed Rule, but it is an affront to all Citizens of the United States who cherish their Rights of Privacy, Life, Liberty and the Pursuit of Happiness, as well as all Government Officials who take an Oath to Uphold and Defend the Constitution of the United States. Even if no other reasons existed, which is not the case, APHIS should immediately withdraw the Proposed Rule; take the time to reflect; and then and only then, prepare a new Regulatory Impact Assessment that specially addresses the authority of APHIS, without Congressional approval, to “legally” infringe upon the Rights of Privacy, Life, Liberty and the Pursuit of Happiness for potentially “hundreds of thousands of dog breeders.”
8. FAILURE TO ADDRESS CONCERNS OF BREEDERS WITH RESPECT TO BEING REQUIRED TO ALLOW "STRANGERS" TO COME INTO THEIR HOMES: The Proposed Rule contains what is tantamount to a Government mandate that would require that breeders permit "strangers" to come into the privacy of their homes. This mandated requirement has heightened perceived concerns that breeders could become victims of copy cat, Craig's List Killers. This too, is an issue that the Regulatory Impact Assessment failed to address, and represents yet another reason why APHIS must withdraw the Proposed Rule because it failed to prepare a comprehensive Regulatory Impact Assessment that addressed all substantive issues that include, but are not limited to, the perceived "quick fix" closing of the so-called "Internet Loophole" without regard to the fact that it could enable maniacal individuals to gain access to a breeder's home. The proverbial "home" is supposed to be a person's "castle," and the U. S. Government should never desecrate the Rights of Privacy of one's "home" without exhausting all other rational and reasonable alternatives. If the true intent of the Proposed Rule is to regulate large scale sellers of dogs through the use of the Internet, a logical alternative would be for APHIS to have first "surf" the Internet to determine and document the number of Internet Sellers of significantly large quantities of puppies that are bred in kennels, as opposed to residential homes, and then addressing this issue in its Regulatory Impact Assessment. This was not done. Instead, APHIS simply "pulled out of the air" the unsubstantiated number of "1,500 breeders," with no empirical data to back up that figure, and then simply threw the proverbial "baby" out with the bath water by establishing an arbitrary standard that will require “hundreds of thousands of dog breeders” to open up their homes to tens of thousands of strangers. This is what is commonly referred to as an "OVERKILL." There are less intrusive ways to address the perceived problem with the so-called "Internet Loophole," but no such alternatives were discussed in the Regulatory Impact Assessment. Again, this failure of APHIS to "comply" with the fundamental and basic requirements of the Administrative Procedures Act and Executive Orders 12866 and 13563 represents yet another reason why APHIS must withdraw its Proposed Rule.
9. FAILURE OF APHIS TO COMPLY WITH THE STATUTORY REQUIREMENTS AS SET OUT IN THE SMALL BUSINESS ACT: Most, if not all, of the breeders who would be affected by the Proposed Rule would fall within the definition of a "Small Business." Consequently, APHIS had a statutory duty to ensure full compliance with the Small Business Act, which included, among other things, that APHIS submit a certification to the Chief Counsel for Advocacy of the Small Business Administration, and include a very specific statement as to the impact that the Proposed Rule on the "Small Businesses" that would be affected. In the absence of "full" compliance with the Small Business Act, APHIS must withdraw the Proposed Rule.
10. FAILURE OF APHIS TO ADDRESS THE IMPACT THAT THE PROPOSED RULE WOULD HAVE ON THE ENDANGERED SPECIES ACT: No Government Agency, including APHIS, is permitted to ignore the requirements as set out in the Endangered Species Act. However, APHIS did not address the potential impact - - sometimes referred to as “unintended consequences” - - that the Proposed Rule would have on certain breeds of dogs that are rarer than others. Furthermore, APHIS did not address the potential “ripple effect” that the Proposed Rule would have on breeders of rare breeds of dogs. In this regard, one potential “ripple effect” is that literally thousands, and potentially “hundreds of thousands of dog breeders,” may stop breeding dogs altogether as the only alternative to avoiding “NO NOTICE” Inspections of their homes and the resultant desecration of their privacy of their homes, including their bedrooms. Were this to occur, some breeds of dogs would become extinct because greater care and attention is required to ensure the health and safety of their puppies. For example, many Female “Frenchies” are not physiologically capable of natural "puppy birth.” Consequently, the life of the Frenchie and her puppies may be endangered if a Veterinarian does not perform a Caesarian Operation. And then, after the Caesarian Operation, the Female Frenchie often abandons her puppies, which requires a breeder to literally bottle feed every two hours - - 24-7, night and day - - the Frenchie puppies. This is an onerous task that the breeders of Frenchies undertake because of their love and affection for this breed of dog. However, if the inherent stress of breeding Frenchies is compounded by APHIS transforming the bedrooms of breeders, where the bottle feeding often occurs, into a “retail pet store,” the breeders of Frenchies may simply stop breeding altogether. And the "unintended consequence" could be that the Frenchies would become an endangered species as a direct result of the Actions of APHIS which has the primary Government Responsibility for "Animal Care and Welfare."
To put the issue of "Endangered Species" in perspective, the Army Corps of Engineers once cancelled a dredging operation on Vandenberg Air Force Base, California so that it would not disturb the natural habitats of the “Black-Flowered Figwort” (A WEED!!!!!) and the “Unarmored Threespined Stickleback." In a similar manner, APHIS should have and "MUST" consider the potential perils of creating "Endangered Species" of dog breeds as a result of an "unintended consequence" of its Proposed Rule. That is an illustrative example of why APHIS should have addressed this issue in its Regulatory Impact Assessment. Its failure to do so represents a critical omission that requires the Proposed Rule to be withdrawn until a comprehensive Regulatory Impact Statement is prepared, as opposed to the “pencil-whipped" version that was submitted to the Office of Information and Regulatory Affairs for review before posting the Proposed Rule in the Federal Register for Public Comment.
11. “BENEFITS” ANALYSES AND ASSESSMENTS ARE SUPERFICIAL, INACCURATE AND INADEQUATE: APHIS cited the basis of the Proposed Rule to be that it would “bring more pet animals sold at retail under the protection of the Animal Welfare Act.” However, none of its “Assessments” discussed how it would have adequate staffing and resources to ensure that that the additional “pet animals sold at retail” would be protected. In this regard, APHIS published in a January 2012 “Questions and Answers” Fact Sheet that stated that with its current staffing, “the number of open enforcement investigations has increased to well over 2,000, a volume that has proven to be too large to enable APHIS to swiftly address and deter serious violations.” In light of this “self-indictment” of its ability to “swiftly address and deter serious violations,” how can APHIS cite in its “Benefits” Analyses and Assessments that it will be able to “bring more pet animals sold at retail under the protection of the Animal Welfare Act” when it is not able, with its current staffing, to deal with its existing backlog of cases?
By APHIS’s own admission, the Proposed Rule would increase the already beleaguered staff with an additional 1,500 breeders who would be required to be inspected at least annually to ensure compliance with the Animal Welfare Act. However, this number is woefully underestimated because it is based on unfounded “assumptions” that appear to have been grossly underestimated, at best, by a factor of at least 10-to-1 (15,000 newly covered breeders), and, at worst, as high or higher than 100-to-1 (150,000 newly covered breeders) in light of the unrefuted Judicial Determination in the Doris Day Law that there are “hundreds of thousands of dog breeders throughout the United States.” Consequently, it was a hollow representation, without substance, that APHIS would be able to “bring more pet animals sold at retail under the protection of the Animal Welfare Act,” especially since, by its own admissions, it has not been able to reduce the backlog of existing cases and to “swiftly address and deter serious violations" with its current staff. The “BOTTOMLINE” is that APHIS has no empirical data, other than its stated “assumption,” as to how many currently unlicensed breeders would be literally swept under the coverage of the Animal Welfare Act by the Proposed Rule. This is yet another reason why the Proposed Rule must be withdrawn because the Benefits Analyses and Assessments fail to meet the standards as established by the Administrative Procedures Act and Executive Orders 12866 and 13563.
12. FAILURE OF APHIS TO CONDUCT A COMPREHENSIVE STUDY TO DETERMINE WHAT “REASONABLE” ALTERNATIVES THAT IT NEEDED TO CONSIDER PRIOR TO PUBLISHING THE PROPOSED RULE: APHIS was required by the Administrative Procedures Act and the Regulatory Flexibility Act to consider reasonable alternatives before it published its Proposed Rule. A reasonable alternative that was not addressed in the Assessments presented to the Office of Information and Regulatory Affairs was to conduct a comprehensive study that would determine the scope of the problem, if one truly did exist, and what additional resources and funding, if any, would be required to address the problem. And if additional resources and funding were required, then it would have been incumbent upon APHIS and USDA to refer the study to the Congressional Budget Office to determine a realistic cost to attain the professed benefits sought by APHIS. None of this was done. That is why this failure on the part of APHIS to comply with the Administrative Procedures Act and the Regulatory Flexibility Act is yet another reason why it is incumbent upon the USDA to direct that the Proposed Rule be withdrawn. Such action would not limit the ability of APHIS to publish a Proposed Rule in the future, provided it complied with the requirements as established by the Administrative Procedures Act and Executive Orders 12866 and 13563. In short, regardless of how desirable the Proposed Rule may be perceived to be by some, the Administrative Procedures Act is the operative document that all Government Agencies are required to follow - - and there are not exceptions to these requirements.
13. WILL THE PROPOSED RULE CREATE THE EQUIVALENT OF AN “UNFUNDED MANDATE” THAT WILL NEED TO BE ADDRESSED BY CONGRESS?: There is no indication that APHIS referred the Proposed Rule to the Congressional Budget Office for an objective analysis of how much it would cost the U.S. Government to implement and enforce the Proposed Rule. Consequently, APHIS may be unwittingly, at best, circumventing a Government Process that is essential for sound fiscal management of our Government, especially during times of massive Budget Deficits. This is an issue that was not addressed in any Cost Assessment or Analysis conducted by APHIS. Consequently, the prudent, fiscally responsible course of action that should be undertaken by APHIS would be to withdraw the Proposed Rule; and then conduct an appropriate and detailed Cost Analysis and Assessment that is vetted and reviewed by the Congressional Budget Office and the Office of Information and Regulatory Affairs. In this regard, the Proposed Rule may become an unenforceable “nullity” if APHIS does not have the funding or resources necessary to increase its Inspection and Enforcement Staff by an order of magnitude of 10-fold or more if the “pool” of breeders that were required to be inspected increased from less than 10,000 to potentially as many as 150,000 or more.
14. “COSTS” ANALYSES AND ASSESSEMENTS WITH RESPECT TO THE POTENTIALLY AFFECTED BREEDERS AND THE ECONOMY ARE SUPERFICIAL, INCOMPLETE, MISLEADING, INACCURATE, UNSUBSTANTIATED AND WOEFULLY INADEQUATE, AND IN SOME INSTANCES ARE NON-EXISTENT: The major flaw of the "Costs" Analyses is based on the unsubstantiated premise that only "1,500 breeders" would be affected by the Proposed Rule. In this regard, no “Completed Staff Study” or comprehensive survey that would include all “Hobby Breeders” - - this “universe” of breeders far exceeds those who are registered with the American Kennel Club (AKC) - - in order to determine a more accurate number of breeders who would actually be affected by the Proposed Rule. In the absence of such a “Completed Staff Study,” and for the reasons as discussed above, a more realistic number of potentially affected breeders would be in the range of 15,000 to 150,000. For the sake of discussion, if one were to use the estimates used by APHIS, this would increase the overall cost to breeders to a maximum range of $55.45 Million to $554.5 Million - - MORE THAN ONE HALF-OF-A-BILLION DOLLARS!
The “figure” of “MORE THAN ONE HALF-OF-A-BILLION DOLLARS!” may actually be exponentially higher because it appears that APHIS estimated on the low side of how many Hobby Breeders and Internet Seller Breeders would incur Veterinarian costs associated with the care of their dogs and puppies. In this regard, for inexplicable reasons, APHIS estimated that only 237 out of 1,500 breeders would ever incur Veterinarian expenses during the course of a year. Such an assumption goes beyond the pale of being ludicrous because it is rare for any responsible pet owner of a single dog to go an entire year without taking his or her dog to a Veterinarian. In contrast to the experience of a dog owner who owns but one dog, it is inconceivable that any breeder who would have as few as four intact females, each of which may very well have at least one litter during the course of a year, would never have seek the services of a veterinarian during the course of a 12-month year. Thus, the “assumption” that 1,263 newly regulated breeders, who would typically have a cumulative total of 20-30 puppies and dogs in their homes or kennels during the course of an entire year, would not use a Veterinarian at any time during the year is so unfathomably unrealistic that it impugns the credibility and integrity of the entire Cost Analysis that is set out in the Proposed Rule under the Section of “Costs and Benefits.”
Compounding the shallowness of the APHIS Cost and Benefit Analysis Chart is the speculative and unsubstantiated determination that was made by APHIS that only “194” of the 1,500 would be required to sanitize and clean the areas where they housed their dogs each day in order to meet the requirements as set out in Section 3.11 of the Animal Welfare Regulations (APHIS “Blue Book.”) This Section does not make an exception or exemption for any breeder - - NO EXCEPTION OR EXEMPTION WHATSOEVER!!!! - - to the requirement to clean and sanitize the “primary enclosures” for their dogs. In short, if the primary enclosures for the dog includes any portion of a residential home, that section would apply to the portions of the home where the dogs are allowed to be . . . . That means every breeder who is affected by the Proposed Rule must clean and sanitize every area - - without exception - - that a dog or puppy occupies, even for a fleeting moment. And each of those areas must be cleaned and sanitized each day. Thus, without any explanation as to why only "194" of the estimated “1,500” breeders would be required to clean and sanitize each day, the integrity and the “objectivity” of the APHIS Cost and Benefit Analysis Chart are fatally corrupt and not worthy of any credible belief. And this represents yet another reason why the required Cost and Benefit Analysis was not conducted in accordance with the standards that are required by the Administrative Procedures Act, and that is why it is imperative that the Proposed Rule be withdrawn at this time.
15. “COSTS” ANALYSES AND ASSESSEMENTS WITH RESPECT TO THE POTENTIAL IMPACT OF THE PROPOSED RULE ON THE AMERICAN ECONOMY AND RELATED INDUSTRY SECTORS ARE NON-EXISTENT, NOTWITHSTANDING THE FACT THAT BILLIONS OF DOLLARS OF REVENUE ARE GENERATED FROM VETERINARIAN SERVICES AND FROM THE SALE OF SUCH ITEMS AS DOG FOOD AND SUPPLIES USED BY BREEDERS, PET OWNERS AND PET STORES: Billions of Dollars of Revenue translates into potentially Hundreds of Thousands of Tax-Paying Jobs. Consequently, the “required” assessments that were submitted along with the Proposed Rule should have addressed what impact, if any, the Proposed Rule would have on the economy and jobs, especially if tens of thousands of heretofore unregulated breeders were to cease breeding dogs in order to avoid the perceived intrusion into the privacy their homes by Tens of Thousands of Individuals. Were this very plausible scenario to play out to its logical conclusion, it will inevitably result in the loss of jobs and revenue, which losses could conceivably "translate" into the loss of Thousands of Jobs and Hundreds of Millions of Dollars. In short, the “unintended consequences” of the Proposed Rule could have a “significant" impact on the American economy that would well exceed the threshold of $100 Million. In fact, the Dollar Figure may total Billions of Dollars.
Since this would be a “significant” impact, and since APHIS acknowledged that the Proposed Rule fell into the designated category of being “significant,” APHIS was required to have specifically addressed the potential of this very specific, economic consequence. However, it did not do so. Thus, this is yet another example of a failure on the part of APHIS to comply with the “requirements” as established by the Administrative Procedures Act and Executive Order 12866. Consequently, APHIS is legally required to withdraw its Proposed Rule, and conduct a comprehensive and detailed Regulatory Impact Assessment before considering the appropriateness of resubmitting its Proposed Rule for review and approval by the Office of Information and Regulatory Affairs.
The current perception of Hobby Breeders, which is well founded, is that that the Proposed Rule will have a significant impact upon them. Relatively speaking, a “small percentage” of the entire “universe” of Hobby Breeders are Members of the American Kennel Club (AKC), which licensed and sanctioned over 17,000 “Dog Events” in all 50 States in 2011. According to records published by the AKC for the year 2011, the revenue generated from spending on purebred dogs in all 50 States cumulatively exceeded One Billion Dollars!!!!! At the very least, APHIS should have addressed the issue as to what impact the Proposed Rule would have on all "Dog Events," especially since the AKC Dog Events alone generated over One Billion Dollars in Revenue during 2011. However, APHIS did not reference the potential impact on Dog Breeder Shows and Events in its Regulatory Impact Assessment, even though they generated over One Billion Dollars in Revenue in 2011 - - a significant amount of revenue that could be lost as a result of the “unintended consequences” and the potential “ripple effect” of the Proposed Rule. And this One Billion-Plus Dollars did not include additional revenue generated by the Millions of Spectators who attended the more than 17,000 Dog Events in 2011, as well as the revenue generated from the dog food consumed during 2011 by the more than 3 Million Dogs that participated in the more than 17,000 Dog Events licensed and sanctioned by the AKC. The failure of APHIS to address the potential impact of the loss of more than One Billion Dollars on the economy that could be lost as a result of the Proposed Rule represents a fatal deficiency in its Regulatory Impact Assessment, which deficiency may only be remedied by withdrawing the Proposed Rule, and doing a “Do Over” if APHIS were to decide to republish a “new” Proposed Rule that fully meets the requirements as set out in the Administrative Procedures Act and Executive Orders 12866 and 13563.
16. “OFFLINE,” "EX PARTE" DISCUSSIONS AND REPRESENTATIONS MADE BY “OFFICAL” APHIS REPRESENTATIVES BEFORE AND AFTER THE PUBLICATION OF THE PROPOSED RULE ON A MYRIAD OF ISSUES WITH RESPECT TO TOPICS SUCH AS EXEMPTIONS, WITH SOME, BUT NOT ALL, STAKEHOLDERS AND THE GENERAL PUBLIC, HAVE SO “TAINTED” THE PUBLIC COMMENT PROCESS THAT THE ONLY WAY TO ADEQUATELY "CURE" THE NON-COMPLIANCE ACTIONS OF APHIS AND TO ENSURE FULL COMPLIANCE WITH THE INHERENT "DUE PROCESS" RIGHTS OF THE GENERAL PUBLIC TO BE PROVIDED WITH THE FULL OPPORTUNTY TO COMMENT UPON ALL "OFFLINE" AND "EX PARTE" DISCUSSIONS IS TO WITHDRAW THE PROPOSED RULE, AND IF APHIS STILL DEEMS IT TO BE APPROPRIATE TO PUBLISH A PROPOSED RULE, TO DO SO IN ACCORDANCE WITH THE STANDARDS AS ESTABLISHED BY THE ADMINISTRATIVE PROCEDURES ACT. Dr. Rushin and other Senior APHIS Officials have participated in a number of conference calls, phone conversations, and exchanges of E-Mails with an unknown number of individuals. Since they deemed it necessary to participate in such "offline" and "ex parte" discussions, and then published an up-dated Question and Answer Fact Sheet just 11 Days before the close out period for Public Comments, these facts support and substantiate the assertion that the Regulatory Impact Assessment and the Cost and Benefits Analysis were so "muddled" and confusing that it leads to the inescapable conclusion that that the Proposed Rule is patently defective. Such defectiveness may only be corrected by withdrawing the Proposed Rule so that a detailed and comprehensive Regulatory Impact Assessment may be accomplished in accordance with the Administrative Procedures Act. Once this occurs, then all of the General Public, as opposed to a select and "privileged" few, will be able to make well informed "Public Comments."
17. THE REVISED QUESTION AND ANSWER FACT SHEET THAT APHIS PUBLISHED ON JULY 5, 2012 - - JUST 11 DAYS BEFORE THE 60-DAY COMMENT PERIOD CLOSES - - IS TANTAMOUNT TO AN ADMISSION THAT THE PROPOSED RULE IS CONFUSING AND EXPOSES CONFLICTS IN REPRESENTATIONS MADE BY APHIS TO DIFFERENT STAKEHOLDERS DURING "OFFLINE" AND "EX PARTE" DISCUSSIONS WITH SOME, BUT NOT ALL, STAKEHOLDERS. The purpose of a Regulatory Impact Assessment is to create a comprehensive "Staff Study" type of document that addresses "all" impacts, not just a few. The fact that APHIS believed it was necessary to "revise" and "publish" new representations just 11 days before the Comment Period closes penalizes those who submitted their comments based on what was originally published in the Federal Register because they may not now, at the so-called "11th HOUR," have adequate time to submit additional comments based on "revelations" contained in the revised "Question and Answer Fact Sheet." Publishing a new, "fly by the seat of your pants," "11th HOUR" Question and Answer Fact Sheet is totally inconsistent with the requirements as set out in the Administrative Procedures Act. Consequently, APHIS is left with no other alternative but to withdraw the Proposed Rule and do a "DO OVER," from start to finish, before it may publish a revised Proposed Rule in the Federal Register.
18. THREATS TO NATIONAL SECURITY AND LAW ENFORCEMENT THAT HAVE NOT BEEN ADDRESSED: A major source of the “Working Dogs” that are used by the Department of Defense, Homeland Security, the Department of Justice, and State and Local Law Enforcement Entities throughout the entire United States comes from the so-called group commonly referred to as “Hobby Breeders.” These conscientious breeders take great pains to breed dogs that possess the singularly unique attributes that are essential for the most effective use of the dogs in the multi-faceted roles that these dogs play in detecting bombs and drugs and fugitives from the law. The potential “unintended consequence” of this Proposed Rule is that breeders who breed, raise, train and sell their “Working Dogs” may have to choose between opening up their homes to strangers and potential terrorists who may seek to “target” the source of the “Working Dogs,” or to simply stop breeding dogs altogether. In this regard, an overwhelming majority of the Hobby Breeders, whose numbers far exceed the "1,500 breeders" that the APHIS has estimated will be affected by the Proposed Rule are horrified, literally horrified, that their Constitutionally Guaranteed Right of Privacy will be trivialized and desecrated by the requirements as set out in the Proposed Rule. Consequently, the "unintended consequence" of the Proposed Rule will almost certainly result in a shortage of the minimum number of “Working Dogs” that are essential for not only Preserving our National Security, but are essential for a myriad of Law Enforcement Activities. At the very least, APHIS should have consulted with the Department of Defense and the Department of Justice and the Department of Homeland Security to seek an input as to what would be the potential impact on National Security and Law Enforcement were there to develop a shortage of "Working Dogs" that have the appropriate attributes that are ideally suited for their use by the Federal, State and Local Governments to ensure that our National Security and Law Enforcement Protections are not placed in jeopardy. Since this was not done, if for no other reason than for National Security, it is imperative that the Proposed Rule be withdrawn. Furthermore, the Office of Information and Regulatory Affairs and Congress must be immediately and specifically notified of the potential impact that this Proposed Rule on National Security, as it relates to “Working Dogs,” and to the potential impact it could have on reducing the number of such dogs that are essential for maintaining the National Security of the United States. Otherwise, APHIS may unwittingly be aiding and abetting the diabolical interests of the very terrorists who pose a threat to the United States of America and to its Citizens.
One of the “Lessons Learned” about “National Security” from the horrific blight on the History of America that occurred on September 11th, was the importance of “CONNECTING THE DOTS.” “Working Dogs” fall into the category of a SIGNIFICANT “DOT” that was totally ignored in the Regulatory Impact Assessment, and is symbolic of the systemic superficiality of the Regulatory Impact Assessment that was prepared by APHIS and submitted to the Office of Information and Regulatory Affairs. That is why it is imperative that APHIS withdraw the Proposed Rule; go back to the “drawing board;” and prepare a substantive Regulatory Impact Assessment that is in compliance with the Administrative Procedures Act. Then and only then may APHIS publish a new Proposed Rule to address the “problems” that it purportedly was attempting to address in the Proposed Rule that was published on May 16, 2012.
19. THREATS TO THE SAFETY OF THE BLIND, DEAF, DISABLED AND THOSE WHO BECOME THE SUBJECT OF SEARCH AND RESCUE: There are more than 25 subcategories of “Working Dogs” that are bred and trained to become, among other things, “Guide Dogs for the Blind,” Signal Dogs for the Deaf,” Mobility Assistance Dogs,” “Service Dogs for the Disabled,” and “Search and Rescue Dogs.” All too often many, except those who rely upon them, give precious little thought to the importance of these types of “Working Dogs" that provide an invaluable service to our Society. These “Working Dogs” are far, far more than “companion pets.” And the fact that the Regulatory Impact Assessment for the Proposed Rule did not address this issue speaks volumes as to the superficiality of the Assessment that was prepared and submitted to the Office of Information and Regulatory Affairs. And this “fact” begs the following question:
“Will the Proposed Rule have the effect of reducing the number of ”Working Dogs” available to perform such services that are often taken for granted; and if so, what would be the impact upon our Society and the people who have and will continue to have a need for such dogs, but are denied the opportunity to fulfill that need because the Proposed Rule resulted in thousands of dedicated and caring breeders ceasing to breed such dogs because they abhorred the idea that to continue to provide this “service” to Society and those in need, they would have to sacrifice their Right of Privacy that is an integral part of one’s “HOME???”
The failure to address this specific Societal “Working Dog” Issue, as well as the above discussed National Security and Law Enforcement Issues, in the Regulatory Impact Assessment is exacerbated by the fact that dogs are living creatures, and unlike a factory that in times of emergency may be "ramped-up" and can go into “Emergency, Round-the-Clock Production,” the United States of America does not have the ability to “manufacture” or mass produce "Working Dogs" overnight to meet its responsibilities to our Society, in addition to meeting its National Security Needs. Just as a baby does not grow into an “adult” overnight, trained puppies do not become “Working Dogs" overnight……even in terms of “Doggie Years.” That is why there must be an adequate number of breeders and trainers who have the knowledge, experience, dedication, and ability to produce elite “Working Dogs;” there must be suitable breeds of dogs that need to be bred; there must be the normal “gestation period” that is controlled by the “Laws of Nature;” and even then, only a certain percentage of those puppies that are born are suitable for the type of training that is required before they can begin to perform their invaluable service. This process takes time - - typically a year and a half at a minimum. Thus, any shortage of the requisite number of "Working Dogs" needed to perform the above described services poses a threat to services that currently are being provided. The potential shortage of “Working Dogs” that could occur as a result of the "unintended consequences” of the Proposed Rule are not speculative. THEY ARE REAL!
As a parenthetical aside, APHIS also needs to consider the issue of not placing undue, economic and intrusive burdens on breeders of ”Working Dogs” that may interfere with and impede their ability to find suitable homes for those puppies that are not best suited to become "Working Dogs," but are more ideally suited to become a beloved pet. This is yet another substantive issue that was not addressed, but should have been addressed in what appears to have been nothing more than a “perfunctory,” superficial Regulatory Impact Assessment that APHIS submitted to the Office of Information and Regulatory Affairs with unsubstantiated representations that it met the requirements as established in the Administrative Procedures Act and Executive Order 12866 - - yet another reason for APHIS to withdraw the Proposed Rule.
20. WILL APHIS TURN A "BLIND EYE" TO THE FACT THAT SOME ORGANIZATIONS, SUCH AS THE HUMANE SOCIERTY OF THE UNITED STATES (HSUS) AND THE AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (ASPCA), MAY BE ATTEMPTING TO "STUFF THE BALLOT BOX" WITH CANNED FORM LETTERS AND E-MAILS?
The fact that the HSUS posted on its Website on May 10, 2012 - - six days before the Proposed Rule was published in the Federal Register - - that "Secretary Vilsack and the U.S. Department of Agriculture" had issued a Proposed Rule designed to close the loophole in the Animal Welfare Regulations (See Attachment 1) raises a serious issue that "offline" and "ex parte" communications between the HSUS and USDA have occurred, and may continue to be occurring, which communications were not included in the Regulatory Impact Assessment or the Federal Register. And this concern is exacerbated by the fact that the HSUS May 10th posting had a link that took its Members and Supporters to a "canned," boilerplate message that was specifically addressed to Secretary Vilsack. This link also included the following statement: "If you fill out and submit the form below before July 9, we'll hand-deliver your comments to the USDA." (See Attachment 2) And then on June 14, 2012 the HSUS posted on its Website that the HSUS "hand-delivered more than 60,000 letters from its members and supporters to the United States Department of Agriculture." (See Attachment 3) As an aside, the ASPCA also posted a boiler plate "form" for its Members to use and submit in support of the Proposed Rule. (See Attachment 4)
It is my understanding that form letter submissions will be counted as "one" submission. If APHIS does not so treat the tens of thousands of form letter submissions by the HSUS and the ASPCA as but one submission, then I respectfully request that my detailed comments be considered to represent the concerns of the “hundreds of thousands of dog breeders throughout the United States” who simply are asking that APHIS withdraw the Proposed Rule, and if it still deems it to be appropriate to issue a new Proposed Rule, that it do a "DO OVER" that meets the fundamental compliance requirements with the Administrative Procedures Act and Executive Orders 12866 and 13563.
21. HAVE APHIS REPRESENTATIVES ENGAGED IN IMPROPER "EX PARTE" COMMUNICATIONS WITH REPRESENTATIVES FROM THE HUMANE SOCIETY OF THE UNITED STATES (HSUS) PRIOR TO PUBLISHING THE PROPOSED RULE IN THE FEDERAL REGISTER ON MAY 16, 2012? "Ex Parte" communications about the details of a Proposed Rule with "select" and purported stakeholders prior to the publishing any Proposed Rule in the Federal Register for Public Comment, undermines the integrity and objectivity of the Proposed Rule; violates the current Administration's Policy on "Transparency;" and raises ethical and legal issues that are inconsistent with the Code of Ethics that was published by the U.S. Office of Government Ethics.
Compelling evidence of premature, "ex parte" communications may be deduced from the fact that the HSUS published on its Website on May 10, 2012 - - six days before the Proposed Rule was published in the Federal Register - - a "take action now" posting with a "Link" that had a form letter that specifically began as "Dear Secretary Vislack." The form letter expressly asked Secretary Vislack to "make clear that nonprofit animal rescue groups are not covered under the definition of "dealer." This "Link" also stated that "If you fill out and submit the form below before July 9, we'll hand deliver your comments to the USDA." (See Attachment 2) Then on June 14, the HSUS posted on its Website that it had "hand-delivered more than 60,000 letters from its members and supporters to the United States Department of Agriculture." (See Attachment 3)
Compounding the potential "fall out" from what appears to be a continuation of inappropriate "ex parte" communications between APHIS and the HSUS, which communications are inconsistent with the letter, spirit and intent of the Administrative Procedures Act and the purpose of "Public Comment," is the fact that APHIS posted an "up-dated" Question and Answer Fact Sheet on July 5, 2012 - - 11 days before the close-out period for Public Comments - - which addressed the May 10th concerns expressed by the HSUS about the need to exempt "rescue groups" without affording the public a total of 60 days to address the propriety of such a blanket exemption. Here it is significant that the blanket exemption for "rescue groups" does not address the fact that there are many examples of so-called "rescue groups" going to public auctions, and buying dogs for the sole purpose of reselling the dogs at a profit under the "scam" that they are "rescue groups," without regard to the fact that they may selling dogs that are infected with the Parvo Virus. Thus, this exemption may create a new and inappropriate "Rescue Group Loophole" in an effort to close a perceived, but not fully documented, "Internet Loophole." In short, if "rescue groups" are to receive a blanket exemption, without regard to the fact that they often have sold dogs with Parvo, and have escaped the scrutiny, criticism and wrath of so-called humane societies, then does not such a fact reek with the hypocrisy that fails to address the "health of pets sold" - - the stated purpose of the Proposed Rule?
A collaterally related issue to the potential of clandestine-like communications is the fact that APHIS hired a former HSUS Litigation Attorney to be the Chief of its Investigative and Enforcement Branch in 2010, and APHIS has yet to address an appeal of a Freedom of Information Act (FOIA) Request Appeal for documents related to the hiring of the former HSUS Litigation Attorney. This appeal was based in part on the fact that the original FOIA Request was sent to the immediate supervisor of the former HSUS Litigation Attorney who purportedly made a determination that no records could be found. The "pending appeal" has yet to be acted upon by APHIS after nearly ONE YEAR! Such a delay in an era of purported "Transparency" of Government Activities suggests a "Cover-Up" within the very same Office that would have the responsibility of enforcing the Proposed Rule is on-going. In the words of former President Nixon: "It's the cover-up that hurts. If you cover up, you're going to get caught."
If a subsequent determination is made that APHIS participated in a "cover-up" of circumstances surrounding the hiring of a former HSUS Litigation Attorney who would be responsible for enforcing the Proposed Rule, it would so embarrass and impugn the integrity of the APHIS Office of Investigative and Enforcement that it would irrevocably "taint" every single enforcement action undertaken by the Office that is charged with the responsibility of enforcing the Animal Welfare Act. This would affect all enforcement actions of APHIS - - not just those covered by the Proposed Rule - - and it would create the very antithesis of the purpose of the Animal Welfare Act, which is to protect the health and welfare of dogs and animals covered by the Proposed Rule. Such a potential "cover-up" "scandal," and the above discussed National Security Issue are the two most compelling reasons why the Proposed Rule must be withdrawn; and why a complete "DO OVER" of a Regulatory Impact Assessment must be prepared before any new Proposed Rule by APHIS may be rewritten with more exacting clarity before it is reviewed by the Office of Information and Regulatory Affairs, and before it is published in the Federal Register as a Proposed Rule.
For all of the above 21 Reasons, as discussed above, APHIS is required to withdraw the Proposed Rule. Such action would be in keeping with "compliance" with the Administrative Procedures Act and Executive Order 12866 and 13563, and would not preclude APHIS from doing a "DO OVER" that is done in "full" compliance with all Federal Statutes, Executive Orders and the "Due Process" Clauses that are set out in the Fifth and Fourteenth Amendments of the U. S. Constitution.
Franklin W. Losey
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