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Online Pet Retailer Protest Nixed as All Bark

(CN) - "Howls" from animal breeders against new government regulations failed to move a wordplay-happy federal judge.

The Associated Dog Clubs of New York State and dozens of other canine and feline clubs brought the federal complaint in Washington last year upset over new regulations of online pet retailers enacted by the Animal and Plant Health Inspection Service, APHIS, a division of the U.S. Department of Agriculture.

Though the Animal Welfare Act, as amended in 1971, classified a "retail pet store" as a seller exempt from APHIS regulation, "APHIS determined that the new rule was necessary because the burgeoning online pet market sparked a large increase in unregulated, sight-unseen sales," U.S. District Court Judge Christopher Cooper explained Friday.

The new rule APHIS proposed would limit "the retail pet store exemption to only those outlets where 'each buyer physically enters [the store] in order to personally observe the animals,'" Cooper said. Sellers with four or fewer female breeding dogs are exempt from the new regulation.

Finding that the agency's "justification for the rule is reasonable on its face," Cooper rejected an attempt by the dog clubs Friday to seek relief under the Administrative Procedures Act.

The reasonable construction by the agency "of 'retail pet store' keeps it out of the APA doghouse," Cooper wrote.

He said the dog clubs "maintain that APHIS exceeded its authority because the new definition of retail pet store is inconsistent with the agency's prior definition, which had allowed unregulated sight-unseen sales for 47 years and which APHIS defended against an APA challenge as recently as 2003."

"But that dog won't hunt," Cooper added.

The decision to appeal will come this month,, a website affiliated with the plaintiff dog club, said.

"And now that we will have a more fiscally conservative Congress beginning in January, Congress may be less apt to fund requests for more APHIS inspectors, especially if the rule is being challenged on appeal," the statement continues.

In its complaint, the dog clubs accused APHIS of underestimating the number of breeders affected and the projected costs to come into compliance.

Cooper meanwhile emphasized that Congress left the new definition untouched when it reauthorized the Animal Welfare Act.

"Short of explicit endorsement, it is difficult to imagine a better example of congressional acquiescence to a regulatory change," the 15-page opinion states.

Changing a longstanding rule does not automatically constitute an error in decision-making, the court found.

"An agency can change its prior position to address a loophole, even a longstanding one, and can decide that a growing problem warrants more oversight than was previously necessary," the opinion states.

Though the reports of estimated compliance costs submitted by the dog clubs far exceeded those put forth by APHIS, Cooper said "the breeders' bark seems bigger than the regulator's bite."

"The impact of facilities costs on the overall industry of hobby breeders appears to be modest," the decision states. "APHIS estimated that only one percent of newly-regulated breeders would be required to construct new primary enclosures."

That some breeders may need to spend more money and do more work for their animals only supports the need for a rule change, Cooper added.

"Thus, if the clubs are correct that some of their members would have to build new housing to avoid keeping dogs in inappropriate conditions, it would only substantiate APHIS's underlying justification for the rule: some unregulated online retailers may be treating their animals inhumanely," the opinion states.

Cooper also rejected an attempt by the dog breeders for relief under the Regulatory Flexibility Act, noting that it does not provide another forum for the clubs to chew over their substantive arguments."

The Humane Society applauded the decision, agreeing that "every large-scale operation should be inspected and every dog provided a bowl of clean water and enough space to move around."

Neither the plaintiff dog club nor the U.S. Department of Agriculture returned requests for comment.

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